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LOSS CAUSATION AND INCIDENT INVESTIGATION - ELEMENT A2

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A2.1 - Theories of loss causation Losses result from lack of control and are revealed by loss causing events. These events may be known by a variety of names, the most common of which is ‘accident’. There are many different definitions for the term accident, ranging from simple to complex. A useful definition of an accident is: An unplanned, uncontrolled event which led to, or could have led to injury to persons, damage to plant or some other loss to the company. Figure A2-1: Definition of an accident. Source: RMS. This definition encompasses events that result in a wide range of losses and has, for a long time, helped to provide a good perspective of events with different outcomes. This has assisted greatly in encouraging people to learn from events and the subsequent prevention of accidents. The definition therefore, includes ‘near misses', i.e. where no injury or damage etc. occurs. It is important not to think of injuries, damage and other losses as accidents, but rather as the results of accidents. The following accident model is offered to illustrate the above statement: a brick falls from a height. The following consequences could result: 1) The brick falls into a pile of sand and there is no damage or injury. 2) The brick hits an item of equipment, resulting in damage, but no injury. 3) The brick strikes a person causing a cut and bruising to the hand, this is an injury accident. 4) The brick strikes a person working directly underneath causing a fatality.

Figure A2-2: Accident. Source: HSG245. Figure A2-3: Near miss. Source: HSG245.

The difference between a near miss and a fatal accident in terms of time and distance can be very small indeed. It is therefore clear that the damage to persons or property is not the accident, but part of the effects of the accidents (i.e. the result or consequences). An old adage says never waste an accident. Apart from being unpleasant and perhaps very costly, every accident constitutes an opportunity to correct some problem. For this purpose, a near miss which has the potential to cause loss is just as important as a serious injury/damage, in fact even more important if we are to avoid a future loss incident, a golden opportunity not to be missed. In the HSE Guidance Document HSG245 “Investigating accidents and incidents”, the HSE refers to an ‘Adverse Event’. An adverse event includes:

Accidents. Incidents.

The term ‘adverse event’ used by the HSE is similar to the term ‘accident’ used in figure A2-1 above and encompasses events that have a wide range of outcomes. The HSE reserve the term ‘accident’ for events that involve harm to people. The HSE define an Accident as: An event that results in injury or ill-health. Figure A2-4: Definition of an accident. Source: HSE, HSG245. The HSE states that an incident includes a:

Near miss. Undesired circumstance.

ELEMENT A4 - IDENTIFYING HAZARDS, ASSESSING AND EVALUATING RISKS

5) Define the system’s initial conditions. 6) Construct the fault tree. 7) Determine the minimal fault tree. 8) Rank the elements. 9) Quantify the fault tree. Example - fault tree analysis

Figure A4-18: FTA example - showing probability figures. Source: RMS.

The steps of fault tree analysis 1) Identify the top event (undesirable event) The top event should be the major failure of the system under consideration (e.g. fires or explosions). The analyst determines the immediate and necessary causes that result in the top event. Normally, these are not basic causes but are intermediate faults that require additional development. If the analyst can immediately determine the basic causes of the top event then the analyst is spending time on an assessment that is too powerful for the problem. 2) Decide on level of resolution The analyst decides the amount of detail to be included in the fault tree by specifying the level of resolution for the fault tree events. For example, a motor-operated centrifugal pump can be included as a single piece of equipment, or it can be described as several hardware items (e.g. casing, impeller, volute, shaft, packing, etc.). 3) Define the analysis boundary conditions The analysis boundary conditions describe the system in its normal, successful state. Time should be spent identifying unacceptable events and existing events.

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ELEMENT A8 - PRINCIPLES OF HEALTH AND SAFETY LAW

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Edwards v National Coal Board (1949) [All ER 743 KB 704] Reasonably practicable - the ‘quantum of risk’ test Facts: Mr Edwards was killed when a section of roadway collapsed. The National Coal Board (NCB) argued that the cost of shoring up would have been prohibitive and was not justified. Decision: The NCB were found liable on the basis that the cost of making this particular road section safe was not great when compared to the risk. Relevance: The ‘Quantum of Risk’ test should be applied in determining whether or not the steps that were taken in the circumstances of the incident were sufficient to satisfy the requirements of the term ‘reasonably practicable’ where such an obligatory term is stipulated.

“This ‘Quantum of Risk’ test is the analogy of a scale balance whereupon the degree of risk is placed on one pan and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed on the other; and that, if it be shown that there is a gross disproportion between them - the risk being insignificant in relation to the sacrifice - the defendants discharge the onus upon them.”

Figure A8-2: ‘Quantum of risk’ test definition. Source: Lord Asquith.

A8.3 - Role of the European Union Influence and role of the European Union and its main institutions as they affect UK legislation The main role of the European Union (EU) is to enable the progressive integration of Member States' economic and political systems and the establishment of a single market based on the free movement of goods, people, money and services. This move to integration depends on the establishment of equity within a legal structure and the availability of European standards. The EU influences UK legislation by creating a number of legal instruments including Treaties and Directives which cause the UK to establish UK legislation on the matter that the Treaties and Directives focus on; this includes legislation affecting health and safety. Some EU legislation is issued jointly by the Council of the European Union and the European Parliament, some by the Council and some by the Commission under delegated powers. It consists of regulations, directives and decisions:

Regulations are directly applicable in all member states and have the force of law without the need for implementing further measures.

Directives are equally binding, but allow each member state to choose the form and method of implementation.

Decisions are binding on those to whom they are addressed, and do not normally need national implementing legislation.

Non-binding recommendations and opinions can also be made. The EU Single European Act (SEA) identified the need to eliminate technical barriers to trade, such as the differing legal health and safety standards throughout the EU. The approach taken to eliminate the barriers was to develop a philosophy of essential health and safety requirements and harmonisation Directives that require the essential health and safety requirements to be met. In addition to this, the Single European Act recognised the need to encourage improvements in the working environment. Directives were created that required all Member States, including the UK, to meet specific requirements on controlling health and safety risks. European standards are usually prepared by the European standards bodies: the European Committee for Standardisation (CEN) and the European Committee for Electrotechnical Standardisation (CENELEC), as a result of mandates being agreed with the European Commission. CEN and CENELEC are based in Brussels and they bring together the national standards bodies of the European Union and European Free Trade Association (EFTA). The UK member is the British Standards Institute (BSI). Standards may be set by agreement on a text that has been developed or by agreeing to adopt an existing international standard as a European standard. All Member States have agreed to adopt the resulting standards as their national standards and to withdraw any existing and conflicting standards. The UK adopts the standards as British Standards by denoting them as BS EN XXXX.

CIVIL LAW - ELEMENT A10

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A10.1 - Common law duties Principles of tort (delict - in Scottish law) of negligence THE TERM NEGLIGENCE The tort of negligence (delict in Scotland) is the most common cause of civil action for work related injury. Negligence was defined in the case of Blyth v Birmingham Waterworks 1856. Here the claimant alleged that the water company had failed in their duty of care by laying a water pipe at too shallow a depth in the ground, which, as a result, became frozen in winter. “Negligence is the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.” Figure A10-1: Definition of negligence. Source: Baron Alderson, Blyth v Birmingham Waterworks [1856]. Thus, negligence is failing to do something a reasonable person would do or doing something that a reasonable person would not do (i.e. an act or omission) in the same circumstances. The “man on the Clapham omnibus” is often cited as representing the reasonable person. Ultimately it is the Judge who will decide what is reasonable, based on the facts of the case. The Judge will take into account precedents established in prior cases. Thus the law of torts relating to negligence is being continually developed with old cases being applied to new situations. “The categories of negligence are never closed.” In effect the standard of ‘reasonableness’ changes with the changing morals and attitudes of society as a whole.” Figure A10-2: Development of the term negligence. Source: Lord Macmillan said in Donoghue v Stevenson [1932]. In order to prove negligence, the claimant must show that:

The defendant owed the claimant a duty of care. The defendant was in breach of that duty. That the claimant had suffered an actionable loss as a result of the breach.

DUTY OF CARE OWED Thus, before negligence is proved, it must first be established that a duty of care is owed by the defendant to the claimant. Donaghue v Stevenson (1932) helped establish a principle of care that was owed, called the ‘neighbour principle’. "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then, in law, is my neighbour? The answer seems to be - 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 into question.” Figure A10-3: The neighbour principle. Source: Lord Atkin.

BREACH OF THE DUTY OF CARE THROUGH NEGLIGENCE A breach of the duty of care is required when proving negligence. This depends on the standards of care that may be expected from the ‘reasonable person’. CAUSAL LINK BETWEEN THE BREACH AND THE LOSS SUFFERED The injury (loss) was a result of the breach. The injury or loss must be as a consequence of the breach. Generally, the harm must be ‘reasonably foreseeable’. The breach of duty must be connected to the loss, for example, a claimant may claim that the noise level in a workplace caused them to conduct a manual handling task badly and injure their back. This may be considered by the court hearing the case to be too remote a link. In addition, it is necessary to prove that the loss suffered was not too remote from the breach of duty. This is particularly applicable to situations where a claimant claims for what may be seen as consequential loss. Whilst a court can confirm compensation for damages directly arising from the breach of duty this does not generally extend to more remote consequential loss, for example, missing a wedding because of injury caused. Concept of res ipsa loquitor Normally the burden of establishing that the defendant has broken the duty of care and there was a link to the loss suffered rests with the claimant. In some instances the facts that the claimant establishes are such that ‘the thing may speak for itself’ - res ipsa loquitur. In this situation, it is made obvious to the court that there is negligence by the expression of the facts of the case alone. In this case, the claimant does not have to offer further evidence and it then remains for the defendant to establish that the damage occurred without their negligence. In Cassidy v Ministry of Health (1951), for example, the Court of Appeal was of the view that the very fact that the claimant emerged from treatment in a hospital with a paralysed hand raised a presumption that the