Health and Safety at Work Act - Essay Example

Health and Safety at Work Act 1974: The Employers Liability Introduction         A member of the House of Lords has recently confirmed the success ofthe Health and Safety at Work Act. Lord Grocott has pointed out that the number of fatal and non-fatal injuries to workers fell by seventy percent in the year 1974 to 2007 (qtd. in “4 July”). In 2003, UK had lower average of fatalities than the entire European Union, 2.5 fatal injuries per 100,000 employees for EU versus 1.1 for UK (Grocott, qtd. in “4 July”). This has been considered a proof to the statute’s efficient implementation in the United Kingdom. Significantly, the law has been strictly applied in recent court decisions. In case of accidents which are uncertain, employers can now be held liable. Employer’s Liability         Section 2(1) and 3(1) of HSWA provide the duties of employers to their employees and to third persons. Section 2(1) states that: employers are duty-bound “to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his or her employees” (qtd. in “Health and Safety at Work”). Section 3(1) on the other hand points out that employers are obliged to conduct his or her “undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his” or her “employment who may be affected thereby” are not “exposed to risks to their health or safety” (qtd. in “Health and Safety at Work”). Under these two provisions, there are two major terms which are not defined in the law itself. What is reasonably practicable and the kind of risk that is referred to are not clearly set forth. It can rather be argued that to determine whether an act is reasonably practicable or not, the facts of the case must be considered. Accordingly, since every case has unique circumstances, what is reasonably practicable then, can have various interpretations. This makes the phrase broad. It is purely a question of fact. Nevertheless, the term “risk” is relevant in knowing what is reasonably practicable to do or not to do in a certain situation.   In the case of Edwards v. National Coal Board (1949), Lord Justice Asquith described the term “reasonably practicable” as narrower than “physically possible” (qtd. in “Edwards”). It was his observation that an employer must make a computation (qtd. in “Edwards”). Considering a scale, the “extent of risk” is to be placed on one side and the “sacrifice” necessary to prevent such risk is to be positioned on the other side (Asquith, qtd. in “Edwards”). If their respective weight is grossly disproportioned, the risk being insignificant in relation to the sacrifice, then the employer should be discharged from the liability (Asquith, qtd. in “Edwards”). In other words, if the risk is higher than the sacrifice, the employer should sacrifice but if the risk is lower than the sacrifice, he or she may not choose to sacrifice. The degree of risk serves as the basis to determine whether the employer’s act was reasonably practicable or not. However, it is important to know the kind of risk that is being referred to in the statute. The cases of R v. Porter (2008) and R v. Chargot Ltd. (2008) mention two kinds of risk, fanciful or hypothetical and real. As held by Lord Justice Moses in the first case (R. v. Porter), what the prosecution should have proved is real risk as opposed to the other kind (qtd. in “R v Porter”). There is no duty to watch out for fanciful risks (Moses, qtd. in “R v Porter”). In that same case, the court has not prescribed an objective standard. Nonetheless, factors or indicators were used in the investigation. Ultimately, the court found out that there was no real risk involved. It was neither a fanciful nor a real risk but it was just a risk that is part of everyday life (“R v Porter”). The three-year-old child who died after “falling from the flight of steps” was not “exposed to a real risk” due to the school’s conduct (Moses, qtd. in “R v Porter”). The court declared that the child’s slipping or jumping from the steps “was part of the ordinary incidence of everyday life” (“Health and Safety - Risk”). The defendant school then was not obliged to show that it “had done everything reasonably practicable to avoid” the risk (“Health and Safety - Risk”). The responsibility could have occurred if there was real risk. In that jurisdiction, the court has limited the scope of real risk. It does not include occurrences of everyday life. In the second case (R v. Chargot Ltd.), a “dumper truck fell on its side and the driver was buried under its load of spoil” (Hitchcock). There was no one who witnessed the accident and its cause was unexplained (Hitchcock). Nevertheless, it was shown that the two companies were partly negligent. “No risk assessments or training in relation to the use of the dumper truck” was provided. Drivers were not even required to wear hard hats when operating the dumper truck (Hitchcock). Thus the court convicted the defendant companies. Somehow, the case prospered not purely because of the driver’s death but due to the defendant’s blatant negligence. They have breached their general obligation under section 2(1) of the act. This was actually associated to certain regulations in building construction. Laws relating to construction projects were considered by the court in arriving at a decision for conviction. The decision basically gave the employees more security. Even if the prosecution could not state the specific act that the defendant had done causing the accident, the court may still pursue for conviction under section 2(1). In a sense, in case of accidents in the workplace causing an injury, the employer has no escape. The presumption of negligence is attached to employer. “The burden then passes to the defendant” employer “to show that it was not reasonably practicable to do more than was in fact done to satisfy the duty” (Hitchcock). It has made it “more difficult to defend proceedings for breach” of general duty under the HSWA (Hitchcock). The ruling in that case serves as a reminder to employers of businesses to ensure that that they have been observing health and safety standard (Hitchcock). Conclusion         The broadness of some terms in the statute is purposely designed so as to give the courts greater leeway in analyzing and deciding a case. Each and every circumstances making up a case is considered. The rationale of giving more security and protection to employees has been consistent. Works Cited “Edwards v National Coal Board.” Safety Health Environment Law. Safety Health Environment Law, 7 Jan. 2010. Web. 29 Oct. 2010. . “Health and Safety - Risk in the Light of R v Porter.” Walker Morris. Walker Morris, 24 Sept. 2008. Web. 1 Nov. 2010. . “Health and Safety at Work Etc Act 1974.” Health and Safety Home Pages. Professional Health and Safety Consultants, n.d. Web. 29 Oct. 2010. . Hitchcock, Teresa. “R v Chargot Ltd & Others - Case Update.” DLA Piper. DLA Piper, 12 Feb. 2009. Web. 1 Nov. 2010. . “R v Porter.” ICLR. JustCite, n.d. Web. 29 Oct. 2010. . “4 July 2008: Column 473.” www.parliament.uk. www.parliament.uk, n.d. Web. 29 Oct. 2010. . Read More