Regulatory Update - December

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19 December, 2019

Council fined £1.4m after child suffers life-changing head injury on a street bollard

Hampshire County Council has recently been sentenced and fined £1.4 million after being found in breach of s.3 (1) Health and Safety at Work etc. Act 1974. It has also been ordered to pay costs of £130,632

The circumstances of the breach arose, following an incident in December 2015, when a six-year-old girl climbed on to a cast iron hinged bollard when it fell to the ground taking her with it. According to the HSE, she suffered life-changing head injuries as a result of the accident and spent six months in hospital in a critical condition. It is understood that the full extent of the brain injury will not be known until her brain has matured.

The HSE carried out an investigation and found that the bollard was damaged and not appropriately secured. The damaged bollard had been reported to the County Council prior to the incident but it had not been repaired. In addition, the defective bollard had not been noted during monthly highway inspections. The HSE investigation also found insufficient instruction and training had been provided to the council's highway inspectors and that the inspection guidance was misleading.

Forbes comment

This is a truly tragic case. Following the prosecution sentence, HSE inspector Angela Sirianni said: "Councils have a duty to adequately assess and control risks to members of the public from street furniture. A child has been left with life-changing injuries as a result of what was an easily preventable incident. Council inspections failed to identify this risk over a long period of time and then, when alerted to the damage to the bollard, failed to take the urgent action required to prevent injury."

The level of the fine reflects the Sentencing Guidance for such breaches. The Court takes into account the culpability and seriousness of harm and the likelihood of harm when assessing the level of fine based on the size of the organisation. The council's insurance arrangements would not usually cover fines in regulatory prosecutions on public policy grounds.

If the consequences of this tragic accident had been fatal then would the HSE have been investigating the council for possible Corporate Manslaughter and/or Gross Negligence Manslaughter charges too?

Whilst this is a significant fine for the Council, undoubtedly, there is also the inevitability of a civil claim to follow. Any resulting civil claim is likely to be covered by the council's insurance policy subject to any excess. Due to the serious nature of the child's injuries, her age, her recovery and prognosis and the future of cost of care etc., any civil claim may well run into the millions.

Accidents arising from street furniture have been before the Courts historically. It is perhaps worthwhile having a look at matters which arose in the Court of Appeal decision of Shine v Tower Hamlets London Borough Council (2006) EWCA Civ 852. In the leading judgment from Lord Justice Buxton, the Court found that there was no liability for bollards/street furniture under s41 Highways Act 1980 and/or s66 Highways Act 1980. However, liability for personal injuries caused by such defective street furniture may arise in negligence.

Shine concerned a 9-year child who attempted to leapfrog a bollard. The bollard was insecure, not properly secured to the ground and under impact wobbled causing the child to fall and injure himself.

Evidence was given that that the bollard in question had been identified as loose 3 months before the accident and that the council had not carried out repairs due to "budget restraints" until 5 months post-accident.

When considering negligence, the trial judge found that it was foreseeable that a child in the Claimant's position would quite likely leapfrog one of these bollards and it was in an insecure state which caused the accident and injury. The Court did not interfere with the trial Judge's conclusions that it was foreseeable that children may leapfrog over bollards.

The question that arose was whether the council were negligent in the sense of being culpable in not putting the bollard in order at the time when they came to know of its insecurity.

It was argued by the council before the Appeal Court, that it would place an undue and unreasonable burden on the local authority if it were to be held liable in these circumstances. The Appeal Judge rejected that contention and considered it was something that the Council should have done something about. It had a policy of inspecting the bollards and a policy of putting them into a safe state if they were found to be insecure.

The Appeal Judge applying the "balance test" came down firmly on the side of saying that it would not be an unreasonable burden on the council to have taken the precaution in this case of getting their bollard into its proper state.

This case highlights the need for highway authorities to respond promptly to complaints, to provide detailed guidance and training to highway inspectors and to issue comprehensive written inspection guidance, which deals specifically with street furniture and bollards.

Source: https://press.hse.gov.uk/2019/12/04/hampshire-county-council-fined-1-4m-after-child-suffers-life-changing-head-injury

Farming partnership fined after member of public fatally injured

A farming partnership has been fined £18,000 and ordered to pay costs of £10,690 after a member of the public was killed.

It has been reported that in 2017, a farmer was carrying three bales of hay on the front of his JCB telescopic loader. The bales of hay severely restricted his visibility, he did not see the deceased (who was a former employee and lived in the cottage adjacent to the farm) and drove over him, killing him instantly.

The HSE investigation found that the farmer was also carrying an employee of the farm on the mounting step of the vehicle at the time of the accident. If the employee had slipped off the step, he would have fallen directly under the wheels of the machine.

The farmer pleaded guilty to breaching Section 2 (1) and Section 3 (1) of the Health & Safety at Work etc. Act 1974.

Forbes comment

After the hearing, HSE inspector Julian Franklin commented: "Vehicles at work continue to be a major cause of fatal and major injuries; every year there are over 5000 incidents involving transport in the workplace. About 50 of these result in people being killed"

It is common sense to say that drivers, especially those driving heavy farm machinery, must always be able to see in front of them. Simple control measures could have prevented this tragic accident from occurring. More information can be found on the HSE website here.

Source: https://press.hse.gov.uk/2019/10/31/farming-partnership-fined-after-member-of-public-fatally-injured

University fined after research workers exposed to risk of suffering adverse health effects

The University of Edinburgh has been fined £10,000 for putting workers at risk.

It has been reported that animal research workers, who were already sensitised to laboratory animal allergens (LAA), were put at risk of suffering from adverse health effects as a result of exposure to LAA. When two researchers began work at the University of Edinburgh in 2003, they declared that they were allergic to rodents. Despite this, they both continued to work with rats and were exposed to various levels of LAA.

The HSE reported that The University of Edinburgh "failed to carry out suitable and sufficient risk assessments of the exposure to LAA……. They failed to ensure suitable health surveillance was carried out at regular intervals (not more than 12 months apart) and that sufficient information, instruction, supervision and training was provided to the research workers".

The University of Edinburgh pleaded guilty to breaching Sections 2 and Section 33 (1) (a) of the Health and Safety at Work Act etc. 1974.

Forbes comment

This is a prime example of a situation where health surveillance ought to have been implemented. Health surveillance may be required by law if employees are exposed to noise or vibration, solvents, fumes, dusts, biological agents and other substances hazardous to health, or work in compressed air.

Details of industry specific health surveillance can be found on the HSE website here.

Source: https://press.hse.gov.uk/2019/11/01/university-fined-after-research-workers-exposed-to-risk-of-suffering-adverse-health-effects

Exposure to welding fume - HSE issues revised guidance

The HSE has issued revised COSHH guidance for welding, cutting and allied jobs to protect against exposure to welding fumes. The revised guidance has been issued in response to new scientific evidence from the International Agency for Research on Cancer, which confirmed that exposure to welding fumes, can cause lung cancer and possibly kidney cancer.

The guidance can be found here. The HSE's web pages also advise on how to manage exposure to welding fumes.

Forbes comment

In 2020, HSE inspectors will be visiting businesses that undertake welding practices to check that they are complying with the law. Employers must ensure that they familiarise themselves with the new guidance, plan work accordingly and ensure that the right controls are implemented when welding.

Source: https://www.hse.gov.uk/coshh/essentials/direct-advice/welding.htm

For more information contact Ridwaan Omar in our Insurance department via email or phone on 01254 222457. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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