Presentation to Crosscare - Health and Safety Law - Occupiers Liability A&L Goodbody 11 March 2013.

Presentation to Crosscare

- Health and Safety Law

- Occupier’s Liability

A&L Goodbody11 March 2013

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1. Nine core obligations as “Employer”

2. Recent Court cases

3. Real life case studies from Crosscare’s main Sectors

4. Advice on how to deal with HSA investigations and prosecutions

5. Duties and liabilities as an occupier

Running OrderRunning Order

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1. Safety Statement

2. Hazard Identification and Risk Assessment

3. Training

4. Maintaining a safe workplace

- www.hsa.ie

5. Safety representative

Your legal obligations as Your legal obligations as ““Employer”Employer”

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6. Consultation/Employee responsibilities

7. Physical and mental health risks

8. Working time

9. Record keeping

Some practical tips

Your legal obligations as Your legal obligations as “Employer” “Employer”

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HSA v Wicklow County Council

» HSA is an active prosecutor

DPP v PJ Carey Contractors

» Defence for the good and conscientious employer

Recent Health & Safety CaselawRecent Health & Safety Caselaw

Recent Health & Safety Recent Health & Safety CaselawCaselaw

DPP v SIAC and Ferrovial

» Expert evidence indicating exactly what failures are alleged should be before the court

» Prosecution cannot simply rely on the fact of a death of a death or injury to obtain a conviction

Warcaba v Industrial Temps, Dublin Airport Authority and Ryanair

» Standards set in training should be followed in practice

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Catering ServicesCatering Services

Slips, trips and falls

Kitchen safety – knives, burns, scalds

Fire Safety

» Electrical faults/cooking

» Effective fire alarms

Cleaning products7

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Inspection of restaurant identified trip hazards

Improvement Notice served

Follow up inspection 7 months later

» Cable trailing across a step

» Cluttered storage room

Successful prosecution

» Fine of Stg£1,000

» Plus costs of prosecution

Catering Case Study – Trip CaseCatering Case Study – Trip Case

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Kitchen worker suffered a fractured skull and is unlikely to work again

Kitchen floor was very slippery and safety mats were wholly ineffective

Successful prosecution

» Stg£36,000 in fines and costs

Improvement Notice served requiring complete replacement of the floor

Catering Case Study – Slip CaseCatering Case Study – Slip Case

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Catering Assistant suffered burns on her back and on her feet

Emptying a deep fat fryer and plastic bucket melted

Investigation found

» No safe system of work in place

» Poor level of training and supervision

Successful Prosecution

» Fine of Stg£16,000

» Costs of Stg£9,500

Catering Case Study – Scald CaseCatering Case Study – Scald Case

Accommodation Accommodation ServicesServices

Manual Handling

» Ongoing High Court case

» Hotel maid claims heavy workload caused injury

Biological hazards and sharps, e.g. syringes

Fire Safety

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Healthcare/Counselling Healthcare/Counselling ServicesServices

Acute situations

Care for vulnerable patients

Key Risks

» Assault and verbal abuse

» Disorder and abuse from members of the public trying to access services

» Physical attack – individuals under the influence of alcohol or drugs, or those with mental illness

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Healthcare Case Healthcare Case StudyStudy

Elderly patient suffered serious injuries after fall from first floor balcony of private room and died 2 days later

The Court found that the hospital:

» failed to assess risk of patients falling from balconies

» failed to take adequate measures to control this risk

Successful prosecution

» Fine of Stg£100,000

» Plus costs of prosecution (almost £30,000)

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Powers of Inspection

Investigations

Statutory Notices

HSA – Inspections and HSA – Inspections and InvestigationsInvestigations

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How can Health & Safety law really bite?

Criminal Prosecutions

» Penalties

» Onus of Proof is on the employer

Personal Criminal Liability for Directors

HSA ProsecutionsHSA Prosecutions

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Do:Do:

Check HSA inspector’s authorisation

Call your solicitors

Keep a record of documents examined

Consider exercising right to silence

HSA Investigations and HSA Investigations and ProsecutionsProsecutions

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Do:Do:

Consider separate legal representation?

Stop the infringement

Be aware that the Gardaí will usually investigate any serious accident also

HSA Investigations and ProsecutionsHSA Investigations and Prosecutions

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Don’ts: Don’ts:

Do not obstruct HSA inspectors

Do not volunteer information or have informal “chats”

Do not hide or destroy documents

Do not sign anything without legal advice

HSA Investigations and HSA Investigations and ProsecutionProsecution

Occupier’s LiabilityOccupier’s Liability

How does the liability of the owners and occupiers of buildings differ from the general rules on negligence?

This is distinct from the duties of Crosscare as an employer under Health & Safety law.

Types of Third Party Types of Third Party EntrantsEntrants

1. Visitors

2. “Recreational Users”

3. Trespassers

4. Criminal Entrants

1. Visitors1. Visitors

Who is a visitor?

What duty is owed to a visitor?

How may an occupier exclude or limit this exposure?

»Notices

»Must be “reasonable in all the circumstances”

»Minimum level of duty

How does this affect Crosscare?

2. “Recreational Users”2. “Recreational Users”

Who is a “recreational user”?

What duty is owed to a “recreational user”?

How does this differ from the duty owed to a visitor?

What are “recreational activities”?

How does this affect Crosscare?

3. Trespassers3. Trespassers

Who is a trespasser?

Is any duty owed to a trespasser?

Deterrent measures

Retributive measures

Why should any duty be owed to trespassers?

How does this differ from the duty owed to a “recreational user”?

3. Trespassers Contd3. Trespassers Contd.

Courts show some leniency:

» Frequent trespassers

» Child trespassers

» Definition of “reckless disregard”

» Nuisance near roads

Can I use force in the case of trespassers?

How does this affect Crosscare?

4. Criminal Entrants4. Criminal Entrants

No need for definition of criminal entrant!

Is any duty owed to criminal entrants?

Why so?

How is this duty to be balanced against the right to self-defence and defence of Crosscare property?

Practical Application To Practical Application To Crosscare PremisesCrosscare Premises

Disgruntled clients

Unauthorised car parkers

How should Crosscare interact with the Gardaí?

How should Crosscare deal with the press?

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