Mar 7 2015

High Court judgments delivered over the last two years which are relevant to manual handling

manual handlingThere has been two High Court judgments delivered over the last two years which are relevant to manual handling and safety consultants should take heed of them, and should note and implement/recommend to employers in order to avoid liability in claims by employees.
In the first judgement Ms Justice Mary Irvine in the Barry v Dunnes Stores case. The second case was by Mr Justice Anthony Barr in the Meus v Dunnes Stores case, which has just recently been referred to in the daily papers.
The two judgments highlight the importance of risk assessment, task-specific training, the non-dependence on video training as a complete solution, the need to train workers in a language they understand (e.g. foreign nationals) and the importance of on-going supervision thereafter by someone proficient in manual handling, i.e. trained.
The highlight of the first case, i.e. Barry, is the importance of saying no when asked to perform unsafe tasks by management/supervisors. To that end, the employee was found to be one third liable.
The second case focused on inadequate training with regard to risk assessment and supervision.
The Safety Manager gave evidence that he gave a demonstration of good lifting technique, using an A4 box of paper for the exercise which upon questioning admitted that this was in no way conducive to real time tasks (lifting large boxes) in the store as such was not adequate.
The Safety Manager said he showed a slideshow dealing with manual handling, followed by two DVDs on health and safety aspects, including one on the manual handling of loads. The plaintiff rejected this. It was notable that neither the DVD nor a fellow trainee was produced for evidential purposes.
The plaintiff was given a handbook on manual handling. She told the court that she had poor English as such a difficulty in understanding it. It was noted the health and safety manager did not ascertain if all present for the training understood the presentation.
After the training, there had been no follow up to check to see if the plaintiff was adopting the correct lifting technique. If there had of been adequate follow up and supervision, the company would have learnt that she was using an incorrect and dangerous method of lifting items as such this would have been spotted and corrected, possibly by re-training.
No risk assessment had been carried out in relation to the lifting duties of the plaintiff in her department. If one had been, it would have shown that she was required to carry a large and bulky box of significant weight. The risk of back injury would have been evident to all had a risk assessment been carried out. It was also pointed out that a task-specific risk assessment should have been carried out. See http://www.healthandsafetyreview.ie


Mar 7 2015

Absolute Duty – complete, and without condition?

four courts

 

 

 

Absolute Duty – complete, and without condition.
The Supreme Court has held that the Use of Work Equipment Regulations do not    impose an absolute duty on employers (Health & Safety Review, March 2015).
Case Law in Ireland since 2000 (Everitt v Thorsman) had held that that the Use of Work Equipment Regulations imposed a virtually absolute duty on employers. However this has been overturned by the Supreme Court which stated it was difficult to see what further steps could have been taken by Dublin Bus – the pneumatic suspension on a bus malfunctioned causing a loss of cushion effect, as a result of which the driver suffered neck and lower back injuries – to comply with the obligations under the regulations. The Court held the Regulations do not “impose absolute liability on the employer”.
The five-judge court delivered a unanimous judgment granting the appeal by CIE.


Jun 13 2014

Bray Firefighters Deaths Coroners Court Findings.

In the recent Coroners Court, regarding the Bray Firefighter Deaths the jury concluded that there was:

  • A failure to maintain the vital communications systems in the station watchrooms in the Bray and Greystones fire stations;
  • An absence of specific instructions for firefighters in emergency situations;
  • Following the purchase of a new fire tender, a failure to provide appropriate training of firefighters in the use of a new compressed air foam system (CAFS), noting the complete absence of training the use of CAFS in the case of Mark O’Shaughnessy;
  • A shortage of drivers on the day of the fire.

The jury issued a recommendation that that there should be a review of theory and practice in the use of CAFS and went on to express a number of concerns. The foreman of the jury said the absence of an internal investigation by their employer, Wicklow County Council in to the tragic events of the day was a “serious concern”.


Jan 28 2014

Another Case Where Unsafe Practices and Electricity Was an Issue

A Leeds firm has been fined for safety failings after a trainee electrical test technician needed several skin grafts after receiving an electric shock while using what the The Health and Safety Executive (HSE) described as unsafe testing equipment.

The Bradford man (22), spent five days in hospital with injuries to his arms and chest after the incident at Wilson Power Solutions Ltd in Westland Square, Beeston, Leeds in February 2013.

Leeds Magistrates heard in January the trainee electrical test technician had to have skin grafts to both hands and has been unable to return to work since.

The HSE investigated and prosecuted Wilson Power Solutions after finding a series of safety failures both in the equipment being used or provided, and in the working practices at the firm.

The Leeds court was told the trainee was testing a transformer but the test equipment had exposed conductors at 415 volts. When he touched a connector he received an electric shock. The HSE found equipment at a safer low voltage could have been used but it was broken.

The HSE also identified he had been working inside a test enclosure where the interlocking mechanism had been defeated so power was not cut off when he entered. In addition emergency stop buttons were broken and unusable. Readers will recall the case of an electrician given a two year suspended prison sentence (Cork Circuit Criminal Court, November 2013) for deliberately looping out  a trip switch on a power washer. The judge putting emphasis on a trip switch being a matter of grave concern, said he would suspend the sentence on condition that he not work as a electrician for five years.

see, http://press.hse.gov.uk/2014/leeds-firm-in-court-after-trainees-electric-shock/


Jan 18 2014

Two Year Suspended Prison Sentence for Electrician

A judge (Cork Circuit Criminal Court, November 2013) has given an electrician a two year suspended prison sentence for deliberately looping out  a trip switch on a power washer. The judge putting emphasis on a trip switch being a matter of grave concern, said he would suspend the sentence on condition that he not work as a electrician for five years.

The power washer was constantly tripping out and the electrician tripped out the residual current device (RCD) contrary to section 14 of the 2005 Act, i.e.

“14.—A person shall not intentionally, recklessly or without reasonable cause—
(a) interfere with, misuse or damage anything provided under the relevant statutory provisions or otherwise for securing the safety, health and welfare of persons at work, or

(b) place at risk the safety, health or welfare of persons in connection with work activities.”


Jun 14 2013

Section 80 of the Safety, Health and Welfare at Work Act 2005

Section 80 of the Safety, Health and Welfare at Work Act 2005 (hereafter ‘the Act’) is a standalone section of the above act which in itself is a signal by legislators that management must take responsibility where applicable. This runs parallel with the concept of the signed safety policy which states quite clearly, or should do, that management takes the safety of employees quite seriously. Section 80 is worded with great care so as to address any connivance or neglect by managers/directors of a business (private or public sector), of an act that constitutes an offence and that they may be charged/proceeded against along with the undertaking or business concerned.

The onus is on managers/directors to disprove any proceeding against them, otherwise it is presumed that they are guilty of such an offence of negligence for example, hence the need for senior managers and directors to be proactive in addressing safety and health in the workplace, i.e. this is not confined to safety management moreover it applies to those with decision making powers.

Section 2 of the Act, for the purpose of defining directors, encapsulates such persons as those not registered as directors of a business but on a day to day basis, but whose associates in such businesses take such advice and instruction from. Section 2 goes on to say that safety advisers do not become directors by virtue of advice given as the director must act in good faith in that they assess independently in their own minds, the advice given.

RiskA case that comes to mind is that of the case heard in Ennis Circuit Court in 2010. Clare County Council pleaded guilty to four charges (not section 80) of the Act. This case arose from an accident that occurred in May 2006. An employee of Clare County Council suffered serious injuries when a site dumper he was operating overturned. He subsequently died as a result of the injuries. The court heard that there were no protective measures in place to prevent overturning and the deceased was not wearing a seatbelt. Where section 80 comes in is that a Senior Executive Engineer pleaded guilty to two charges, i.e. one related to Section 80 of the Act, and another Regulation as related to Safety, Health and Welfare at Work Act, 2005 (Construction) Regulations 2001. The Council received monetary fines comprising of €50,000 whereas the Senior Executive Engineer received a 12 month suspended sentences (for 2 years).

In essence, the lessons are;

  • Have appropriate and effective safety management systems in place,
  • Perform your duties, you need to know what’s going on,
  • ‘Neglect’ in section 80 (1) is not qualified by the word ‘wilful’, hence it is a stand alone meaning.

*see http://www.hsa.ie/eng/enforcement/Prosecutions_/Prosecutions_2010/#clare 

 

Nothing on this blog is to be construed as legal advice, it is for discussion purposes only.


Jun 11 2013

Road Safety Authority and CPC Driver Publications

Surprised that a safety authority, such as the RSA are not more attentive to detail in their publications, for example module 6, The Professional Bus Driver, has two parts which refer to classification of fires which it seems are not  in compliance with EN 2, I would recommend that they re-visit these and come up with an addendum or new publications.

 


Apr 14 2013

CPR