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Insurance cover and compensation 155 Any award or negotiated settlement should also take into account any reduction in the damages possible by virtue of the Law Reform (Contributory Negligence) Act where the plaintiff suffers damage partly as a result of his own fault The criterion for the proportion of assessment is the degree to which the plaintiff has departed from the accepted norm as compared to the degree of culpability attached to the defendant The statute itself refers to a reduction in damages ‘to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage’ Contributory negligence is not always easy to establish In particular, momentary inadvertence by an employee where the employer is in flagrant breach of his statutory duty will not suffice to mitigate damages, for example see Mullard v Ben Line Steamers Limited [1971] All ER 424 Although contributory negligence can amount to a significant degree of culpability it cannot equate to 100% – see Pitts v Hunt and Another [1990] All ER 344 1.7.5 General The role of the insurer extends beyond the mere limitations of indemnifying an employer against his liability for certain injury or damage Accident prevention is of benefit to both the insurer and the insured because in the final analysis premiums are influenced by the claims cost ratio The social benefits of accident prevention are of course impossible to measure in terms of the avoidance of personal suffering and financial loss The insurers employ experienced surveyors whose job embraces risk reduction in a direct sense through their observation of potential hazards during surveys prior to the arrangements of Employer’s Liability, Public Liability and Engineering insurances resulting in the making of recommendations to improve the risk to be insured References Rideout, R W., Principles of Labour Law – 5th edn, Sweet & Maxwell, London (1989) Lister & Others v Hesley Hall Ltd (2000) UKHL 22; WLR 1311; HL Department of Employment, Health and Safety at Work booklet No 25, Noise and the Worker, HMSO, London (1974) (first published in 1963 – out of print) EEC, Directive on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products Directive No 85/374/EEC, Official journal No 1210/29, Brussels (1985) McGregor, Harvey, McGregor on Damages, 16th edn, Sweet & Maxwell, London (2001) Kemp, D A M., Quantum of Damages, Vol 2, Personal Injury Reports, Sweet & Maxwell, London (1989) Chapter 1.8 Civil liability E J Skellett 1.8.1 The common law and its development The term ‘the common law’ means the body of case law of universal, or common, application formed by the judgements of the courts Each judgement contains the judge’s enunciation of the facts, a statement of the law applying to the case and his ratio decidendi or legal reasoning for the finding to which he has come The judgements are recorded in the various series of Law Reports and have thus developed into the body of decided case law which we now have and which continues to develop The doctrine of precedent whereby an inferior court is bound to follow the judgement of a higher court ensures consistency in the law Thus an earlier judgement of the Court of Appeal will bind a High Court or county court judge considering a similar situation and a decision of the House of Lords is binding on all inferior courts although the House itself is free to reappraise its previous judgements The common law is not a codified body of law clearly defined in its extent and limits New law is being made all the time Judges are asked to adjudicate on sets of circumstances which previously might not have been considered by the courts Moreover a judge, in applying the established principles of common law to the facts he is considering, might well distinguish that particular case from earlier decided cases Finally in determining whether in a case there has been compliance with standards such as that of ‘reasonable care’ the judge will of necessity approach the problem in the light of contemporary knowledge and thinking Thus what is adjudged reasonable conduct in 1950, say, will not necessarily be adjudged reasonable in 1980 In these ways, judges bring up to date the body of common law and adapt and develop it in accordance with the standards and social principles of the era Such changes are of course slow and gradual, but the common law is also subject to more drastic and immediate change by Parliament, examples being the Employer’s Liability (Defective Equipment) Act 1969 and the Occupier’s Liability Acts 1957 and 1984 Although Parliament thus exercises dominance over the common law, the statutes in their turn are interpreted by the judges following legal rules and principles already well established 156 Civil liability 157 A feature of much litigation in respect of injury damage claims, particularly where technical issues have arisen, has been the practice of the contesting parties bringing their own expert witnesses to further their cause These experts may put opposing views on the issue and the judge then has the onerous task of having to decide which is the more apposite, a process that can consume much court time and result in delays to the final judgement This matter was considered by Lord Woolf in his report and a key element of the resulting reforms16 is that the courts will appoint expert witnesses – except in major cases where each party will continue to produce their own expert witnesses The emphasis of the reforms is to find an agreed settlement by conciliation so that the injured claimant can receive compensation more quickly 1.8.2 The law of tort This concerns the legal relationships between parties generally in the everyday course of their affairs, the duties owed one to the other and the legal effect of a wrongful act of one party causing harm to the person, property, reputation or economic interests of another The law of tort covers relationships generally, compared with the law of contract which applies where two or more parties have entered into a specific relationship between themselves for a specific purpose Three separate branches of the law of tort are trespass, nuisance and negligence, the latter being by far the most important and applying in particular to the field of an employer’s liability for accidental injury to his employee 1.8.2.1 Trespass This is the oldest branch of the law of tort An action for trespass is nowadays generally confined to the intentional invasion of a man’s person, land or goods involving, for example, such civil claims for damages as those resulting from battery, assault, false imprisonment, unlawful entry onto the land of another In the latter case, apart from legal action, direct action can be taken against the trespasser using reasonable force to regain possession against, for example, squatters or ‘sit-in’ demonstrators It also includes claims for conversion, an intentional dealing with a chattel constituting a serious infringement of the plaintiff’s right of possession 1.8.2.2 Nuisance There are two forms, private nuisance or public nuisance An action for private nuisance lies only where there has been interference with the enjoyment of land and is appropriate where an occupier of land has acted in such a way as to harm his neighbour’s enjoyment of his land It need not be a deliberate interference and includes such cases as the 158 Safety at Work emission of smoke, fumes or excessive noise The interference must be sufficiently significant and must be unreasonable In deciding if it is, the court will take into account all circumstances including the reason for the alleged nuisance, the locality (e.g whether rural or industrial), the ordinary use of the land and the impracticability of preventing the nuisance The second classification of nuisance, public nuisance, constitutes a criminal offence as well as being an actionable wrong at civil law for which damages may be claimed for any injury or damage caused Public nuisance relates to acts interfering with the public at large and includes, for example, obstruction of the highway, leaving open a cellar flap or leaving unlit scaffolding abutting onto the highway 1.8.2.3 Negligence A broad definition is careless conduct causing damage or injury to another Actions based upon the tort of negligence are far commoner than those based upon other torts Distinctions are not exclusive Very often the same facts can found an action both in negligence and nuisance There are three elements necessary to establish a case in negligence: that there is a duty of care owed by one party to the other, that there has been a breach of that duty, that the breach of duty has resulted in damage 1.8.2.3.1 The duty of care To whom is this owed? In the case of Donoghue v Stevenson this was defined as follows: ‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.’ Neighbours are defined as: ‘Persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.’ There are no hard and fast rules as to who might or might not fall into this category, and this must be examined in each case In some situations, the public at large may be owed a duty, for example by a motorist In others, a duty is more closely defined An employer owes a duty of care in tort to his employee, a manufacturer to the consumer, a solicitor to his client Civil liability 159 The standard of care owed This requires an examination of the facts of the particular circumstances The magnitude of the risk of injury and the gravity of the consequences of an accident must be weighed against the cost and difficulty of obviating the risk A considered decision has to be made Even though a risk may not warrant extensive precautions, the particular process, place or person may have features that make these vital In Paris v Stepney BC 2, for example, the House of Lords held goggles should have been provided for a one-eyed man doing work where there was a risk of metal particles striking the eye although the risk of this happening was such that for a man with normal sight it could be ignored The question is put succinctly by Denning LJ in Latimer v AEC Ltd 3: ‘It is a matter of balancing the risk against the measures necessary to eliminate it.’ The New Zealand courts give a convenient and simple approach to the issue in the case of Fletcher Construction Co Ltd v Webster 4: What dangers should the defendant, exercising reasonable foresight, have foreseen? Of what remedies, applying reasonable care and ordinary knowledge, should he have known? Was the remedy, of which he should have known, for the danger he should have foreseen, one he was entitled to reject as unreasonably expensive or troublesome? 1.8.2.3.2 Breach of duty Once the existence of the duty of care which arises from the relationship of the parties concerned and its standard are established, one has to consider whether or not there has been a breach of that duty, and if so consideration can be given to the next question 1.8.2.3.3 Res ipsa loquitur This Latin maxim means literally ‘the thing speaks for itself’ In other words the circumstances of the accident giving rise to the action are such as impute negligence on the part of the defendant, being an event which, if the defendant had properly ordered his affairs, would not have happened If this plea by a plaintiff is accepted by the court then a presumption of negligence is raised against the defendants In other words, effectively it is for the defendant to prove the absence of fault rather than for the plaintiff to prove fault The defendant can set aside the presumption against him by: Proof of reasonable care having been taken An alternative explanation for the accident which is equally probable and which does not involve negligence on the part of the defendant 160 Safety at Work A complete analysis of the facts, i.e the defendant laying before the court all the facts of the case and inviting full consideration of liability Illustrations of the application of this maxim are such cases as bricks falling from a bridge onto a person walking underneath or cargo falling from a crane onto an innocent passerby, i.e where one would say that prima facie the accident could not have happened without someone’s fault 1.8.2.3.4 The resultant damage The damage must result from the negligent act or omission and be caused by it In other words it must be a direct consequence Most cases of injury are straightforward but sometimes unexpected complications arise, as in the case of Smith v Leach Brain & Co Ltd where a plaintiff was entitled to recover damages for cancer developing from a burn on the lip caused by molten metal This was a direct result of the burn However, the chain of causation must not be broken – there must not be a novus actus interveniens, i.e an act of another party intervening between the defendant’s breach and the loss, or a nova causa, i.e an independent and unforeseeable cause intervening For example, in McKew v Holland and Hannen and Cubitts Ltd it was held that a workman who had sprained his ankle and later fell down stairs when the ankle gave way, resulting in his breaking his leg, could recover from the original wrongdoer damages for the ankle injury but not for the fractured leg because he himself had been negligent for not holding on to the handrail His negligence was held to constitute a novus actus If there are more than one possible causes of an injury, it is for the plaintiff to prove causation – Wilsher v Essex Health Authority However, where a pedestrian was injured by one car then further injured by being thrown into the path of a second, it being impossible to say what proportion of injury was caused by each motorist, it was held that the plaintiff did not have to go so far as to prove the extent of injury caused by each – Fitzgerald v Lane 1.8.3 Occupier’s Liability Acts 1957 and 1984 The 1957 Act defines the duty owed by the occupiers of premises to all persons lawfully on the premises in respect of: ‘Dangers due to the state of the premises or to things done or omitted to be done on them Section 1(i).’ The liability is not confined to buildings and has been held to include, for example, that of the main contractors retaining general control over a tunnel being constructed – Bunker v Charles Brand & Son Limited Section defines the standard of care, owed by the occupier to the persons lawfully on the premises, namely: Civil liability 161 ‘A common duty of care to see a visitor will be reasonably safe in using the premises.’ Then by s 2(3) ‘A person present in the pursuance of his calling may be expected to appreciate and guard against any special risks ordinarily incidental to it, so far as the occupier leaves him free to so’ In other words this class of visitor is expected to use his own specialist knowledge Under s 2(4) ‘A warning or notice does not, in itself, absolve the occupier from liability, unless in all the circumstances it was sufficient to enable the visitor to be reasonably safe’ Whilst the occupier could, under this section, avoid his liability by a suitably worded notice, this is superseded by the Unfair Contract Terms Act 1977, which provides that it is not permissible to exclude liability for death or injury due to negligence, by a contract or by a notice and this applies to a notice under s 2(4) of the Occupier’s Liability Act 1957 The 1957 Act made no provision for those outside this category of lawful visitors, i.e contractors, invitees and licensees The 1984 Act extended the classes of persons to whom the duty of care is owed to those exercising public and private rights of way, ramblers and trespassers In the latter case the Act was directed to alleviate the position of the innocent, such as the young child or someone walking blithely unaware he had no right to be there, rather than the deliberate trespasser 1.8.4 Supply of goods In the normal course of obtaining goods, the purchaser can reasonably expect to be supplied with goods that are fit for the purpose for which he purchased them 1.8.4.1 Manufacturers They owe a duty of care to the consumer of their products independently of any rights the purchaser of their products may have under contract law, against the supplier to them of goods Thus a consumer may be able to sue both his supplier and the manufacturer The leading case is Donoghue v Stevenson which established the principle, the House of Lords holding that someone who drank ginger beer from an opaque bottle, given her by a friend, and who became ill from the presence of a snail in the bottle was entitled to damages from the manufacturers if she could prove her case The manufacturer’s duty is to take reasonable care in manufacture to ensure that the product is without defect and not liable to cause injury There is no liability on a manufacturer if there is the opportunity of intermediate examination particularly where this is expected, which it could not be in the case of a sealed opaque bottle Nor for instance is a manufacturer liable to a workman injured by using defective goods the 162 Safety at Work manufacturer supplied which an employer examines, sees are defective but decides to keep in use albeit only until they can be replaced 1.8.4.2 Consumer Protection Act 1987 By s 2, where damage is caused wholly or partially by a defect in a product, then producers, own-branders, importers and suppliers are liable for that damage Anyone damaged by a defective product has a right of action against those from whom they obtained the finished product or those involved in the production process The Act does not cover liability for economic loss (even though recognised by the common law in Junior Books Co Ltd v Veitchi 10 ) or damages below £275 or claims against repairers and secondhand dealers Liability is non-excludable by contract, notice or otherwise The Act specifically makes it a defence that the product was supplied other than by way of the defendant’s business, e.g by gift It also provides for a ‘development risks’ defence, i.e that the defect was not one the defendant was aware of at the time, given the state of the scientific and technical knowledge then prevailing 1.8.5 Employer’s liability An overall statement of the duty owed by an employer to his employees is that he must take such care as is reasonable for the safety of his employees That duty is owned to each and every employee as an individual, taking into account his own weaknesses and strengths, and is owed wherever the employee may be in the course of his employment, on or off the employer’s premises It is a duty which the employer owes personally to the employee and the employer remains responsible for a breach of that duty even if he has delegated the performance of that duty to someone else, for example to a safety consultant who might have a separate liability The same applies if he has put his employee to work under the order of another party – McDermid v Nash Dredging and Reclamation Co Ltd 11 The employer can be held liable either directly for breach of his own duties or vicariously Vicarious liability arises where an employee or an agent of the employer has acted negligently and caused injury to another employee The employer is legally liable for the wrongful act or omission where it has been performed in his interests However, he is not liable if the employee acts negligently on a frolic of his own independently of his employment Smith v Crossley Bros Ltd 12 illustrates this, where, as a joke, two apprentices injected compressed air into the body of a third and the employers were held not liable The employer’s duty at common law can conveniently be considered under five heads Obviously each will turn on the particular circumstances involving one or more of these elements and it is impossible to give more than general guidelines The heads are: Civil liability 163 system of work, place of work, plant and equipment, supervision and/or instruction, care in selection of fellow employees 1.8.5.1 System of work The employer is obliged to set up and operate a safe system of work, and it is a question of fact in every case what is safe This includes such matters as the co-ordination of activities, the layout and arrangement of the way a job is to be done, the use of a particular method of doing a job The employer is expected to plan and draw up an original method of operation which is safe and free, so far as possible, from foreseeable cause of injury Regard will be held to established practice and absence of accident in assessing what is safe, but the court will still examine the practice to decide if it is safe In General Cleaning Contractors Ltd v Christmas 13 Lord Oakley said in his judgement: ‘the common law demands that employers should take reasonable care to lay down a reasonably safe system of work.’ He continued that workmen even though experienced and competent to lay down a system themselves should not be expected to so, making their decisions at their workplace where the dangers are obscured by repetition, compared with the employer who performs his duty in the calm atmosphere of a boardroom with the advice of experts 1.8.5.2 Place of work The employer is under a duty at common law to provide a reasonably safe place of work, relating to such matters as the provision of gangways clearly marked and free of obstruction, and the maintenance of floors and staircases The duty is fulfilled through regular inspection of the workplace and keeping it in a safe state, free of hazard so far as reasonably practicable It does not extend to protection from abnormal hazards which the employer could not reasonably have foreseen For example, whilst in conditions of ice and snow, paths must as far as possible be sanded before the normal time for employees to arrive at the premises, if there is a sudden totally unexpected snowfall, the employer is not liable if paths are slippery or obstructed until he has had reasonable opportunity to remedy the situation The duty extends to any place at which the employee works whether belonging to his employer or not, but it will depend on the circumstances whether the employer should have inspected them before sending his employees to work there, and perhaps had steps taken to make them safer For example, no court would suggest the employer of a plumber 164 Safety at Work sent out to work at a private house should first send the foreman or supervisor to inspect the house unless the employer had prior knowledge of some particular feature of the premises which introduced added risk In most cases involving factory or site accidents the relevant section of the Workplace Regulations 1992 or the Construction (Health, Safety and Welfare) Regulations 1996 will be pleaded in addition to the duty at common law 1.8.5.3 Plant and equipment The employer owes a duty to his employee to provide safe and proper plant and equipment which must also be suitable for the purpose to which it is put It is a far-ranging aspect of the employer’s duty In the first place the employer may have failed completely to provide equipment necessary for the safe performance of work, for example mechanical lifting equipment for a load too heavy to be manhandled Equipment supplied may be unsuitable for the particular function, or it may be the proper equipment but inadequately maintained or defective Consideration will be given in deciding if the employer is liable to the procedure followed for reporting and rectifying defects, routine maintenance, the issue of small items of plant and such like This aspect is relevant also to the question of whether an employer has provided protective equipment such as gloves, goggles and ear-muffs to reduce or prevent exposure to foreseeable risk of injury Where a claim for damages arises out of an accident in a factory, the appropriate sections of PUWER will be relied upon, for example relating to the guarding of machinery, in addition to the duty at common law The Employer’s Liability (Defective Equipment) Act 1969 discussed later is relevant to this aspect too 1.8.5.4 Supervision and/or instruction An employer must take such care as is reasonable to ensure adequate and proper supervision over and instruction to his employees What is reasonable must depend on the circumstances, including the complexity of the work to be done, the technicality of the equipment concerned and the age and experience of the workman It must be obvious that if a young inexperienced man is set to work on a complicated machine or a complicated task where he can injure himself the employer will be held liable It must not be thought, however, that an employer can leave even a senior experienced man to his own devices Supervision and instructions are a matter of degree but always the courts will impute to the employer a superior knowledge of the dangers and risks in a work 200 Safety at Work cause a cause b cause c accident Each of these multicauses is equivalent to the third domino in the Heinrich theory and can represent an unsafe act or condition or situation Each of these can itself have multicauses and the process during accident investigation of following each branch back to its root is known as ‘fault tree analysis’ The theory of multicausation is that the contributing causes combine together in a random fashion to result in an accident During accident investigations, there is a need to identify as many of these causes as possible In reality, the accident model is an amalgam of both the domino and multicausality theories Petersen has compared and contrasted both theories and gives an example16 which illustrates the comparative narrowness of the domino theory in relation to the multicausality theory and concludes that this has severely limited the identification and control of the underlying causes of accidents The theory of multicausality has its basis in epidemiology Gordon17 points out that accidental injuries could be considered with epidemiological techniques He believes that if the characteristics of the ‘host’ (accident victim), of the agent (the injury deliverer), and of the supporting ‘environment’ could be described in detail, more understanding of accident causes could be achieved than by following the domino technique of looking for a single cause only Essentially, Gordon’s theory is that the accident is the result of a complex and random interaction between the host, the agent and the environment, and cannot be explained by consideration of only one of the three 2.2.6.4 Failure modes and effects This technique involves a sequential analysis and evaluation of the kinds of failures that could happen, and their likely effects, expressed in terms of maximum potential loss The technique is used as a predictive model and would form part of an overall risk assessment study 2.2.6.5 Fault tree analysis Fault tree analysis is an analytical technique that is used to trace the chronological progression of factors (events) contributing to the accident situation, and is useful in accident investigation and as a predictive, quantitative model in risk assessment Again, the principle of multicausality is utilised in this type of analysis (A fuller treatment on fault tree analysis is given at section 2.4.6.) Principles of the management of risk 201 2.2.7 Accident prevention: legal, humanitarian and economic reasons for action 2.2.7.1 Introduction In order to get action taken in the field of accident prevention, safety advisers have the three fundamental lines of attack on which to base their strategies for generating and maintaining management activity in this area These three reasons for accident prevention make use of the legal, humanitarian and economic arguments respectively An optimum accident prevention strategy for a particular organisation would involve a combination of the three, because they are interrelated and probably reinforce one another 2.2.7.2 Legal reasons for accident prevention The legal argument is based on the statutory requirements of the HSW, FA and other related legislation The HSW imposes a general duty on employers to ensure, so far as is reasonably practicable, the health, safety and welfare of all his employees The term ‘reasonably practicable’ involves balancing the cost of preventing the accident against the risk of the accident occurring Thus, economic considerations need also to be taken into account PUWER lays down more specific statutory requirements which impose a minimum but absolute standard of conduct on the employer Any breach of the statutory duties imposed by either of the aforementioned Acts can result in the employer being involved in criminal proceedings The penalties under the Health and Safety at Work Act include unlimited fines and imprisonment for up to two years, for prosecution on indictment On average, 20 directors, managers, supervisors, employees are individually prosecuted per annum A number of individuals have been given custodial sentences under, for example, asbestos, machinery safety and gas safety legislation The maximum fine on summary conviction for certain offences is currently (December 2000) £20 000 with the maximum for other offences being £5 000 The safety adviser can therefore reason via the legal argument for accident prevention on the basis that the employer should avoid attracting a prosecution The economic argument is also relevant here, because of the fines that may be imposed as a result of statutory breaches, and also because of the impact of Improvement and Prohibition Notices in terms of uninsurable consequential loss arising out of enforced cessation of work The image of the company or organisation is also likely to be tarnished as a result of adverse publicity received in connection with any prosecution for breaches of statute Loss of company image has predominantly economic disadvantages, usually because of the loss of good will or other intangible and invisible company assets, which in turn indirectly leads to a loss of business 202 Safety at Work 2.2.7.3 Humanitarian reasons for accident prevention The humanitarian reason for accident prevention is based on the notion that it is the duty of any man to ensure the general well-being of his fellow men This places an onus on the employer – the common law duty of care – to provide a safe and healthy working environment for all his employees An illustration of this occurs in the case of Wilsons and Clyde Coal Co Ltd v English 18, where Lord Wright said that ‘the whole course of authority consistently recognises a duty which rests on the employer, and which is personal to the employer, to take reasonable care for the safety of his workmen, whether the employer be an individual, a firm or a company and whether or not the employer takes any share in the conduct of the operations’ There is some overlap here between common and statute law, as the Health and Safety at Work Act places a general duty on an employer to ensure, so far as is reasonably practicable, the health, safety and welfare of his employees The safety adviser is therefore able to argue – via humanitarian reasoning – that it is immoral to have a process or machine which may injure employees, and he can stress the possible outcome of such dangers in terms of pain and suffering 2.2.7.4 Economic reasons for accident prevention The fundamental reason for utilising the economic argument in the promotion of accident prevention is the fact that accidents cost an organisation money However, in order to press the economic argument, knowledge is needed of the costs to the organisation of all types of accident Essentially, there are two types of accident costs – the insured costs, and the uninsured costs The insured (or direct) costs are predominantly covered by the Employer’s Liability insurance premium, which to all intents and purposes is the direct accident cost to the majority of organisations The uninsured (or indirect, hidden) costs of accidents should also be established Bamber19 developed a list of uninsured costs which is considered to be objective, and which will readily be accepted by operational management as being costs associated with accidents: 10 Safety administration and accident investigation Medical and treatment Cost of lost time of injured person Cost of lost time of other employees Cost of replacement labour Cost of payments to injured person Cost of loss of production and business interruption Cost of repair to damaged plant Cost of replacement of damaged materials Other costs – e.g photographs, transport, accommodation, wage details, fees etc Principles of the management of risk 203 The above list of costs should be utilised in the calculation of the total accident costs to the organisation, to enable senior management to gauge the relative impact of such costs, by comparing them with other business costs An HSE document24 demonstrates that accident costs can amount to 37% of annual profits, 8.5% of tender prices or 5% of the running costs of the organisations studied The safety adviser is therefore able to reason – via the economic argument – that accident prevention may well be cost-effective But the organisation is reducing pain and suffering by having an effective system of accident prevention, as well as saving money Thus, the economic argument gives support to both the legal – via the use of economic sanctions – and the humanitarian arguments In order to achieve maximum co-operation in any programme of accident prevention, use should be made of an amalgam of all three arguments, i.e legal, humanitarian and economic However, from a motivational point of view, it is the economic argument that has the greatest impact with directors and senior management References Ministry of Labour and National Service, Industrial Accident Prevention, Report of the Industrial Safety Sub-Committee of the National Joint Advisory Council (1956) Health and Safety Executive, Hazard and Risk Explained – Control of Substances Hazardous to Health Regulations 1988 (COSHH), Leaflet No IND(G)67(L), HSE Books, Sudbury (1988) Health and Safety Commission, Legal Series booklet No L21, Management of Health and Safety at Work Regulations 1999: Approved Code of Practice and Guidance, HSE Books, Sudbury (1999) Management of Health and Safety at Work Regulations 1999, The Stationery Office, London (1999) Carter, R L and Doherty, N., Handbook of Risk Management, 1.1–06, Kluwer-Harrap, London (1974) Bird, F E and Loftus, R G., Loss Control Management, 52, Institute Press, Longanville, Georgia (1976) Bird, F E and Germain, G L., Damage Control, American Management Association, New York (1966) Ref 6, pp 93–138 Ref 6, pp 215–246 10 Bamber, L., Incident recall – a (lack of) progress report, Health and Safety at Work, 2, No 9, 83 (1980) 11 The Environmental Protection Act 1990, The Stationery Office, London (1990) 12 British Standards Institution, BS 7750:1992 Specification for Environmental Management Systems, BSI, London (1992) 13 BS 5750: Parts 1–6:1987, Quality systems, British Standards Institution, London 14 Heinrich, H W., Industrial Accident Prevention, 4th edn, 13–16, McGraw-Hill, New York (1959) 15 Ref 6, pp 39–48 16 Petersen, D C., Techniques of Safety Management, 2nd edn, 16–19, McGraw-Hill, Kogakusha, USA (1978) 17 Gordon, J E., The epidemiology of accidents, Amer J of Public Health, 39, 504–515 (1949) 18 Wilsons and Clyde Coal Co Ltd v English, (1938) AC 57 (HL) 19 Bamber, L., Accident prevention the economic argument, Occupational Safety and Health, 9, No 6, 18–21 (1979) 204 Safety at Work 20 British Standards Institution BS EN ISO 14001: 1996, Environmental management systems – Specification with guidance for use, BSI, London (1996) 21 British Standards Institution BS EN ISO 9001: 2000, Quality systems, BSI, London 22 Health and Safety Executive, publication no INDG 163 Five Steps to Risk Assessment, HSE Books, Sudbury (1994) 23 British Standards Institution, BS 8800:1996, Guide to occupational health and safety management systems, BSI, London (1996) [Note: this standard has been overtaken by OHSAS 18002:2000, Occupational health and safety management systems which in turn is likely to become ISO 18002] 24 Health and Safety Executive, Guidance booklet HSG 96 The costs of accidents at work, HSE Books, Sudbury (1997) Further reading Heinrich, H.W., Petersen, D and Roos, N., Industrial Accident Prevention – A Safety Management Approach, 5th edn, McGraw-Hill, New York (1980) DeReamer, R., Modern Safety Practices, John Wiley & Sons Inc., New York (1958) Bird, F.E and Loftus, R.G., Loss Control Management, Institute Press, Loganville, Georgia (1976) Petersen, D.C., Techniques of Safety Management, 2nd edn, McGraw-Hill, Kogakusha, USA (1978) Hale, A.R and Hale, M., A Review of the Industrial Accident Research Literature, Committee on Safety and Health at Work: Research Paper, The Stationery Office, London (1972) Crockford, G.N., An Introduction to Risk Management, Woodhead-Faulkner, Cambridge (1980) Carter, R.L et al., Handbook of Risk Management, Kluwer Publishing Ltd, Kingston-uponThames (1997–1998) Health and Safety Executive Publication No HS(G)65 Successful Health and Safety Management (2nd ed), HSE Books, Sudbury (1997) British Standards Institution BS 8800: 1996, Guide to occupational health and safety management systems, BSI, London (1996) Chapter 2.3 Risk management: organisation and administration for safety J E Channing 2.3.1 Introduction The identification and control of hazards does not occur in a vacuum The methods and techniques of risk assessment may be well understood but they will be far from effective in reducing incidents and injury unless they are deployed within an effective management framework Risk assessments result in changing the actions and behaviour of those affected The behaviour change is sometimes mistakenly thought of as affecting shop floor employees only but directors, managers and supervisors are also affected If risk assessments are to be effective the organisation as a whole needs to understand its roles and responsibilities This factor is evident in the Health and Safety at Work etc Act, 1974 where section (2) requires the employer to provide safe systems of work, information, instruction, training and supervision This can best be achieved through a proper organisation and administration The above steps are necessary to implement the safety policy requirements of the Act (Section (3)) The point is further endorsed in an HSE publication2 which outlines the need for: ᭹ ᭹ ᭹ ᭹ effective health and safety policies to send a clear direction for its organisation to follow; effective management structures and arrangements for delivering the policy; planned and systematic approaches to implementing the health and safety policy through an effective health and safety management system; performance to be measured against agreed criteria to reveal when and where improvement is needed Thus, to derive the greatest benefit from safety activities, and particularly risk assessments, the organisational and administrative arrangements within the company should be clearly understood by all involved For any organisation to function effectively and successfully it is necessary that those who constitute that organisation understand the goals of the enterprise and identify with them They should know where they fit into the executive structure and must be competent and confident 205 206 Safety at Work in the work they have to This applies to all the many facets of the enterprise’s activities, whether production, financial, administrative or safety There needs to be an understanding of the influences, both internal and from outside, that bear on the success of the component parts and the organisation as a whole There should be an appreciation of the conflicts that can arise, their causes as well as the techniques that can be used to defuse the situation Similarly there needs to be an understanding and recognition of the informal structures and relationships that occur within the more formal imposed organisation structure These informal arrangements very often ‘oil the wheels’ of commerce and keep the organisation running smoothly and effectively While a firm structure is necessary to ensure a consistent direction of the efforts of the enterprise, that structure must not be so rigid that it cannot adjust to changes in the trading, economic, legislative and other aspects of the operating environment over which the enterprise has no control This chapter looks at the various relationships and organisations that occur within an enterprise and which can materially affect its success not only in serving its customers and the community but also the satisfaction it gives to, and the safety it provides for, the people it employs The chapter also examines the administrative processes that contribute to the safe and successful running of the organisation The organisational structure and administrative processes are linked because together they shape the behaviour of the enterprise in the entirety of its activities A successful enterprise achieves its goals by constantly reviewing and refreshing its structure and processes In so doing it guides the behaviour of those who work in it towards the desired goals Many organisations have formal structures, determined rationally by the senior executives and often displayed as charts or ‘organograms’ showing the functions that are considered essential for the effective and smooth running of the organisation Equally important but very rarely committed to paper are the informal working groups established socially by members within the organisation Understanding all these aspects is as important in achieving successful health and safety programmes and maintaining the control strategies they generate as any other part of the business enterprise 2.3.2 Organisation structure models An overall management structure needs to be established in order to achieve successful health and safety performance and the management of risks An HSE guidance booklet2 recommends a cohesive management process An international health and safety management standard, ISO 18001, is in preparation and which follows the general structure of the quality standard3 and the environment standard4 An existing UK standard5 is a precursor which offers a scheme for integrating the elements of the international systems with the HSE guidance booklet Both refer to the need for effective organisational and administrative processes Risk management: organisation and administration for safety 207 2.3.2.1 Formal organisation structures For an enterprise to succeed it needs to have some sort of organisation and the most common is hierarchical with authority flowing through definite channels from top management to the workpeople A typical hierarchical organisation chart is shown in Figure 2.3.1 and for it to be effective certain positions must be vested with power to exercise their authority to direct and control the activities of the organisation How that power is exercised will be determined by the culture of the organisation, whether it is authoritarian or bureaucratic Figure 2.3.1 Hierarchical organisation chart 208 Safety at Work Organisation structures of the sort shown in Figure 2.3.1 vary with the size and complexity of the enterprise As profit margins are cut, there is a tendency to remove intermediate layers of management and supervision to reduce costs The rationale is based upon the concept that it is only the shop floor operative who actually ‘adds value’ to the product or in providing a service Other (higher) members of the management and supervisory hierarchy are engaged in planning, organising and monitoring These tasks are seen as ‘burdens’ because they not directly ‘add value’ but add cost The increasing use of electronic information technology is making some of the administrative tasks performed by managers and supervisors redundant allowing these roles in the organisation to be dispensed with An example of a ‘de-layered’ or flatter organisation structure is given in Figure 2.3.2 In this example there are just three levels between shop floor employees and the Chief Executive compared with five levels in the previous structure The reduction in layers has occurred at lower manager and supervisor levels of the organisation As a further move at cost cutting, some organisations have ‘outsourced’ whole parcels of their operations The original enterprise continues to assemble the final product or provide the service but employs only key people to fulfil essential administrative functions, the non-core functions being undertaken either by subcontractors or by people hired on contract This type of arrangement applies more easily to engineering manufacture than it does to line production There are moves for organisations to create ways of focusing only on the essential functions of their operations with the aim of having as few direct employees as possible In parallel with this trend in organisational change, information technology is permitting more people to work from home Employees in sales, purchasing, systems support, etc., are all able to much of their work from home While still on the direct payroll, they are removed to a significant degree from the day-today control of their supervisor or manager This arrangement exhibits the features of the ‘delayered’ or flatter organisational structure shown in Figure 2.3.2 ‘Delayered’ formal structure Risk management: organisation and administration for safety 209 Figure 2.3.2 It should be noted that the employer owes to those employees working from home the same duties as he does to those who attend the place of work By the same token, he owes similar duties to contracted staff who work in his premises 2.3.2.2 Informal organisation structure Within any formal organisation will be found whole networks of informal organisations based on personal relationships, social needs, personal allegiances and sometimes a desire to be helpful in by-passing the formal organisation These informal organisations are rarely committed to paper They come into existence to serve a perceived need of those involved and may remain for many years or can disappear when the need is satisfied Figure 2.3.3 Diagram of workplace contacts 210 Safety at Work An informal organisation may use the formal structure but create unofficial lines of communication to circumvent failures and weaknesses in individuals that make up the formal organisation in attempts to achieve the enterprise’s objectives This is shown in Figure 2.3.3 which demonstrates the actual relationships which could occur where the Production Manager has been running affairs for some time because of the indifferent health of the Plant Manager The Production Manager has gathered a group of key personnel who recognise him as ‘next-in-line’ after the Plant Manager and acknowledge his authority However, the Plant Engineer, who happens to be the Managing Director’s son-in-law, does not acknowledge the Production Manager’s authority and endeavours to exert his own authority by resisting the Production Manager As a result the Plant Engineer is often by-passed when maintenance work needs to be done and indeed the maintenance foreman refuses to take work from him since he, the foreman, only acknowledges the Production Manager as his superior The informal structure serves to improve communication and to develop non-official roles It has an important part to play in the resolution of conflicts between roles and positions Questions raised in the formal organisation often elicit answers that rely on the informal structure Questions such as ‘what’s the best way to get this information?’ or ‘who can get this done?’ produce answers that cut right across the formal structure – but get the job done Occasionally there is tacit recognition of the informal structure by the formal since the informal level allows for practical interpretation of rules and procedures that can otherwise place restrictions on achieving enterprise targets This flexible interpretation of the formal rules may be to the common organisational good, but may also be detrimental where they concern safe working practices 2.3.3 Roles and responsibilities Each person in an organisation should be confident of the role they have to play and aware of the degree of executive responsibility they bear This responsibility must be limited to the extent of the control they have been authorised to exercise While the company, as a legal entity, carries the overall legal responsibility and is answerable to the law of the land, individual employees carry executive responsibilities and are answerable to the Chief Executive or owner of the company Executive responsibility can be delegated, legal responsibility cannot Factors to be taken into account when considering the extent of control exercised by an individual person are the authority and the power that the person has 2.3.3.1 Authority A simple definition of authority is ‘legitimate power’ and Max Weber6 saw authority and its legitimacy as central to the question of organisa- Risk management: organisation and administration for safety 211 tional structure He maintained that authority exists when instructions are obeyed in the belief that they are legitimate In other words that they are justified and that obedience is the appropriate response Weber classified authority into three kinds: ᭹ ᭹ ᭹ rational legal authority based upon rules and procedures and with bureaucracy as its purest form, charismatical authority where the personality of the individual predominates, and traditional authority founded on respect for custom and practice These three authority types are not mutually exclusive but can appear in any organisation at any hierarchical level Authority often has at its base the rules and regulations that the organisation has drawn up to regulate its affairs, but for the authority to be effective relies on a number of presumptions: ᭹ ᭹ ᭹ ᭹ that the rules exist and are accepted by those they are aimed at, that the rules are relevant to the particular circumstances, that the rules will be obeyed by every member of the organisation including those exercising the authority, and that the authority is vested in the office and not the individual A question that has frequently been debated but never resolved is the relationship between authority and responsibility Which should come first? If authority is vested in an individual does responsibility follow or does the holding of responsibility grant the taking of authority? Common sense suggests a balance has to be struck if internal conflict is to be avoided and an organisation is to operate at its most effective 2.3.3.2 Power Power has been described as the capacity to influence others to that which they would not have done voluntarily and is defined by C Wright Mills7 as ‘the capacity to make and carry out decisions even if other people resist.’ Power can derive from authority vested in a person by the organisation, the control of a desired product, such as money, or by virtue of special knowledge or expertise Kaplan8 says that there are at least three dimensions of power which are of practical importance: weight, domain and scope He describes weight as the ability of an individual to affect the probability that another individual will act in a certain way under certain circumstances; domain as the span or number of individuals or groups influenced, and scope as the range of outcomes over which power can be exercised A safety adviser in a factory may have the power to cause a manager to abandon a particular production method or process immediately on his advice, or at the other extreme so little power that his advice is completely ignored The scope of his power may extend to authorising production procedures within the factory but not extend to influencing 212 Safety at Work basic safety matters that affect employees in their leisure pursuits, thus his domain encompasses the factory premises but does not extend outside it The power referred to above is ‘power over’ – the exercising of control over the actions of others, but it is arguable whether this is as effective use of power as ‘power with’ – the concept of two people pulling in the same direction exerting greater force than one person trying to drive another Each person may be seen to have a degree of power and authority At the lowest levels of an organisation an individual may exercise formal power and authority only over his own individual actions However, by his actions and behaviour, he may influence another employee, i.e through the use of informal or personality power Employees whose position places them in higher levels in the organisation exercise power through the formal recognition of their position which carries the appropriate authority With this elevated level of control comes increased responsibility An issue for people who hold higher positions in an organisation is the extent to which they should exercise control over particular and specific tasks delegated to subordinates For example, it is not reasonable for an engineering manager to provide specific instructions and personally oversee a qualified electrician re-wiring a 220 V circuit In most circumstances, the engineering manager will have discharged his responsibility by ensuring the electrician chosen for the job is competent in terms of training and experience If, however, the task involved a 11 kV circuit, then much more vigorous steps need to be taken for the manager to discharge his responsibilities These could include establishing a safe procedure of work including ensuring a risk assessment is carried out, the work people are competent and experienced in the particular work, ensuring isolation from live conductors and counter-signing the permit-to-work The key skill of the manager is to be able to identify when the hazard and the risk demand specific action and ensure it is taken Only then can the responsibility be discharged in a proper manner In more complex circumstances there must still be one person in overall charge although he may delegate responsibility for a number of functions, including safety When he does delegate, he must ensure the people concerned are competent and experienced in the area of responsibility they have been given Roles and responsibilities are usually considered in relation to the position within the formal organisation structure In recent years there has been a trend towards self-managed workgroups which have a much greater degree of control over the planning, organisation and carrying out of the work 2.3.4 Work groups Work groups may be defined as collections of individuals interacting with each other in the pursuance of a common work-related task or goal and who, for this purpose, are dependent upon each other Important characteristics of groups are: Risk management: organisation and administration for safety ᭹ ᭹ ᭹ ᭹ ᭹ 213 the existence of standards of expected behaviour or norms the social experience of working together having a group identity the sharing of common goals the social approval given by other group members to those who meet the group norms There may be a presumption that the goals of the work group are the same as those of management, but this is not necessarily the case Work groups, as a special kind of social phenomenon, have been studied by many observers The best known of these studies is the Hawthorne Experiment9 which started in the early 1920s and ran for 12 years Initially it monitored work and behaviour responses to varying physical conditions Later in the Bank Room study, the experiments investigated work norms where Mayo and his fellow workers found that the act of monitoring workers’ behaviour influenced that behaviour (the Hawthorne Effect), and that the social environment within the groups must be considered equally with the physical conditions as factors governing production rates Mayo’s work stimulated the birth of the human relations movement as opposed to the mechanistic scientific management school of thought of Taylor and Gilbreth The size of a work group may be determined by the tasks to be undertaken but other factors can be its role in the formal organisation, the social atmosphere and the geographical spread of the work Work groups may extend their activities to beyond the work place when there are strong social ties and common social interests between the members Within a work group there may be two levels, the ‘primary’ group whose relations are personal and informal and the larger ‘secondary’ group which is established within the formal structure and where the role relationships predominate Primary groups tend to be small in size dividing into smaller units as they grow in size so maintaining the personal contact and satisfying the social needs of its members Membership of a work group carries with it obligations in the form of pressure to conform as well as the benefit of rewards The need to remain within a work group stimulates a desire to conform to group norms that can be so strong as to change individual attitudes and beliefs The group itself may determine its own boundaries and membership often through an informally recognised leader or leaders Where the work group is management-organised there is a risk of the inclusion of an informally unacceptable member – a sort of bad apple in the barrel – that can disrupt the whole group Consultation with informal work groups by management in order to gain acceptance of changing work patterns has become a recognised work practice As such, work groups have been trained in risk assessment techniques in the hope of stimulating group as well as the individual action A typical example of this practice is the establishment of Quality Circles Changes devised or approved by the group have been found to have more ready acceptance among members Formal recognition of the autonomy of the work groups has been advocated from time to time in an attempt to improve job satisfaction and output, 214 Safety at Work but there is some evidence that this technique is not totally successful since it relies on management and group goals being identical An autonomous group may seek to redefine its goals in ways which may not be to the benefit of the organisation, and are unacceptable to the management The need to maintain a balance of interests within the organisation may be the most significant constraint on the development of work groups within it The ability of a work group to be effectively involved in health and safety depends upon the structure of the group and its maturity as a team In a formal traditionally structured work group which is given specific operating instructions, the supervisor will take the lead role in ensuring the safety of his group, satisfy himself that the workers are familiar with procedures, are properly trained and comply with rules and regulations However, with the move towards flatter organisational structures, there is a trend to delegate administrative responsibilities to as low a level as possible so that much of that work – both production and safety – is carried out by those employed on production itself There is only minimum supervision from senior managers who act in the role of coaches rather than supervisors In this type of organisation the team has a large degree of autonomy The team leader will co-ordinate and oversee the activities of the team and allocate jobs to various members The members (or they may be sub teams) will plan the detailed work (in cooperation with the central planning department), develop their own training programmes (with the human resources department), keep track of safety legislation and standards (with the safety department) and so on High levels of productivity and safety performance have been achieved by work teams organised on these lines While each work team is responsible for the health and safety of its members, the overall legal responsibility for compliance with statutory requirements still rests with the employer 2.3.5 Organisational theory The character of organisations has attracted the interest and study of researchers Taylor developed scientific management theories and focused on the production aspect of work considering people much like machines They were given precise documented tasks to in a set time The tasks had to be performed repeatedly with efficiency being monitored by ‘work study engineers’ who sought ways to cut minutes and seconds off each task People were employed for their ‘brawn’ not their ‘brain’ Manual dexterity alone was valued Employees were at risk from endlessly repetitive tasks placing strain on the same muscle groups of the body Later other researchers began to examine people at work from a different perspective Maslow developed motivation theories based upon a Hierarchy of Human Needs10 which is reproduced in Figure 2.3.4 He concluded that the best motivated and most productive workers are those whose work allows them to fulfil the needs at the top of the Hierarchy ... negligence and nuisance There are three elements necessary to establish a case in negligence: that there is a duty of care owed by one party to the other, that there has been a breach of that... faced elsewhere 180 Safety at Work Different groups have a different perspective Key studies on this topic have been reported by Slovic et al Their work, which is reviewed extensively in chapter... the Health and Safety at Work etc Act 19 74, the Safety Representatives and Safety Committees Regulations 1977 and via the European Union, through the Management of Health and Safety at Work Regulations