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Health and Safety – June 2018

fork lift truck driver discussing checklist with foreman in warehouse Print publication

22/06/2018

Sentencing round-up; Hackitt Review developments; meaning of “defect” under Consumer Protection Act; gross negligence manslaughter in healthcare.

Sentencing round-up

  • A construction company was fined £566,670  after a tipper vehicle driven by an employee touched, or came close to touching, overhead power lines. The driver was not hurt in the incident.
  • Balfour Beatty Utility Solutions Limited was fined £500,000 after workers were exposed to hand-arm vibration over a nine-year period the Health and Safety Executive (HSE) inspector said: “This case was about failing to protect workers. Exposure to hand-arm vibration is a well-known risk which Balfour Beatty Utility Solutions Ltd. failed to adequately control. The company failed to heed warnings. Early health surveillance detected ill health but still this was not acted upon to prevent on-going exposure. This is a particularly serious case because of the extent and duration of failures. The breaches were repeated over several years and this resulted in persistent poor compliance”.
  • A waste disposal company was fined £250,000 after a worker fell into the compaction chamber of a baling machine and died. The HSE investigation found that the incident could have been prevented had the company devised and instructed workers on a safe method for clearing machine blockages: “Employers should make sure they properly assess and apply effective control measures to minimise the risk from dangerous parts of machinery. Maintenance work should only be carried out when the piece of equipment is isolated and confirmed safe. Companies should be aware that HSE will not hesitate to take enforcement action against those that fall below the required standards”. The HSE recently published a report into fatal accidents in the waste and recycling sector. See the press statement of the Chartered Institution of Wastes Management, which supported the research.
  • A lead recycling company was fined £200,000 after a crane operator was trapped and injured by falling scrap lead when the bin it was contained in slipped while being lifted. The HSE investigation found that the work was not suitably planned and supervised by a competent person or carried out in a safe manner.
  • The company director of a fireworks firm has been sentenced to ten years’ imprisonment. He was found guilty in May 2018 of two counts of gross negligence manslaughter, after two men died when an accidental ignition caused fireworks to explode and a catastrophic fire. Among other things, a police investigation found that he had been storing fireworks on the premises far in excess of the quantities that he was licensed to store there.
  • Two fairground workers convicted of gross negligence manslaughter following the death of a seven-year-old girl in a bouncy castle incident have each been jailed for three years. They were also found guilty of a health and safety offence and sentenced to a further 12 months’ imprisonment, to run concurrently.

Developments following Dame Judith Hackitt’s final report on building regulations and fire safety

On the same day that Dame Judith Hackitt’s long-awaited final report on building regulations and fire safety was published (17 May 2018), the government swiftly confirmed that it would be consulting on banning the use of combustible materials and cladding systems on high-rise residential buildings. The Hackitt report had stopped short of recommending an outright ban. The government has now issued its consultation and responses are requested by 14 August 2018.

A steering group of organisations from the construction and fire sectors is working to “develop a plan for an overarching body to provide oversight of competence requirements and support the delivery of competent people”. The Hackitt report set out demanding expectations around improved levels of competence, including the development of a competence framework and oversight body. The group is being chaired by the Chief Executive of the Construction Industry Council. See their press release for more details.

As the public inquiry into the Grenfell Tower disaster continues, the Metropolitan Police is investigating London Fire Brigade’s use of a “stay-put” policy during the fire.

High Court’s further guidance on the meaning of “defect” under the Consumer Protection Act 1987

The High Court recently handed down its significant judgment in group litigation concerning allegedly defective metal-on-metal hip prostheses [1]. The decision provides useful guidance on the meaning of “defect” under the Consumer Protection Act 1987 (the Act), including that:

  • The Act does not impose a warranty of performance on a producer. The test is not that of an absolute level of safety, nor is there an absolute liability for harm caused by a harmful characteristic: “All hip prostheses will eventually wear out and fail, if the patient survives long enough, and some will fail within 10 years: the natural propensity of a hip implant to fail therefore cannot be a “defect”, any more than the inevitable wear and tear that causes minute particles of debris to enter the patient’s body. Otherwise all hip implants would be “defective”…”
  • The fact that a product fails following normal use and in circumstances in which a standard product would not have failed may be enough for the court to infer that it is defective. However, there might be circumstances in which a greater degree of specificity about a feature or characteristic that is said to make the product unsafe is required in order to prove the requisite lack of safety, for example, if the injury or damage could have arisen even if the product met the statutory safety standard: “… the claimant may have to establish that the failure of a product or a component in it was not due to ordinary wear and tear, but to something abnormal that caused it to fail when it should not have done; or that something must have happened to elevate the inherent risk to a level that was higher than the public was entitled to expect”.
  • A producer is only liable for damage caused by a defect in its product. Proof of a causal connection between defect and damage can only be looked at by the court once the defect, if there is one, has been identified.

The Act implements Europe’s Product Liability Directive 1985 (the Directive) in England and Wales. As we reported in the previous edition of the Regulatory round-up, the European Commission recently published a report on the Directive. As part of its evaluation, the Commission will be assisted by an expert group on liability in interpreting, applying and possibly updating the Directive, including in light of developments in EU and national case law. This latest High Court decision is likely to feed in to that work.

Gross negligence manslaughter in the healthcare profession

On 11 June 2018, the government published the independent report from Professor Sir Norman Williams on gross negligence manslaughter in healthcare. The Williams rapid policy review was commissioned by the Secretary of State for Health in February 2018, “to consider the wider patient safety impact resulting from concerns among healthcare professionals that simple errors could result in prosecution for gross negligence manslaughter, even if they occur in the context of broader organisation and system failings. In particular, there was concern that this fear had had a negative impact on healthcare professionals being open and transparent should they be involved in an untoward event, as well as on their reflective practice, both of which are vital to learning and improving patient care”.

The report sets out a number of recommendations which “aim to support a just and learning culture in healthcare, where professionals are able to raise concerns and reflect openly on their mistakes but where those who are responsible for providing unacceptable standards of care are held to account”. The recommendations include the removal of the right of the General Medical Council (GMC) to appeal fitness to practise decisions by its Medical Practitioner Tribunal Service. The report says that “revised guidance to investigatory and prosecutorial bodies and a clearer understanding of the bar for gross negligence manslaughter in law should lead to criminal investigations focused on those rare cases where an individual’s performance is so “truly exceptionally bad” that it requires a criminal sanction”.

Separately, the GMC has commissioned an independent review led by Dame Clare Marx, past president of the Royal College of Surgeons, which will look into how cases of gross negligence manslaughter, and culpable homicide in Scotland, involving doctors are initiated and investigated. Written submissions are requested by 27 July 2018.

As we reported in the August 2017 edition of the Regulatory round-up, the Sentencing Council has been consulting on a draft sentencing guideline for gross negligence manslaughter (in addition to other forms of manslaughter). It is expected that the sentencing guideline will be published in September 2018, coming into force in December 2018. In its response to the consultation, the House of Commons Justice Committee made a number of recommendations, including that the Sentencing Council reconsider the proposed high culpability factors for gross negligence manslaughter, taking account of concerns raised by other respondents to the consultation, including those representing the views of medical practitioners. The Committee concluded that “there is a risk of the high culpability factors proposed for gross negligence manslaughter leading to inappropriately long custodial sentences, especially in relation to clinical decisions taken by medical practitioners in testing circumstances, and situations where junior employees have little control in their workplace environment”.

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[1] Gee and others v DePuy International Ltd (The DePuy Pinnacle Metal on Metal Hip Litigation), [2018] EWHC 1208 (QB)

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