Fresha Bakery and Harvest Time Limited - Case Study Example

Fresha Bakery and Harvest Time Limited Case Author Course Tutor Date Aspects of Criminal Law breached Health and Safety at Work etc Act 1974 (HASAWA) is an Act of Parliament of the United Kingdom. It defines regulation and enforcement of health and safety at the workplace. It defines the duties and responsibilities of employers, employees, suppliers, independent contractors and other stake holders. HASAWA also establishes a system of supervision through the establishment of the Health and Safety Commission and also the Health and Safety Executive. HASAWA provides for criminal liability for individuals who breach the rules provided in it. Criminal liability is normally limited because individual litigation is not common. It emanates from section 2(1) which outlines the duties of employers. The rules under this section that appear to have been breached include the requirement that employers provide and maintain safe and risk free systems of work, which is a requirement under section 2(1) (a). It also requires that the employers provide safe, risk free to health and adequate as regards facilities and arrangements for the welfare of their workers. The employer’s as an employer duty extended to include the provision and maintenance of activities and workplace reasonably practicable, free and safe from risks to health; the repair work subsequently failed this safety requirement. (b) Workplace arrangements should ensure reasonably practicable absence of safety risks by any activity of use handle, transportation and storage of workplace substances and articles. In the case the company decision to handling of the oven failed safety measures. (c) Employer should provide adequate information, instruction, training and supervision necessary to ensure practicable workplace employees’ health and safety. However, unbalanced awareness of dangers led the workers to danger and death outcome. (d) The place of work through the employer’s control and maintenance should ensure safe condition, free from risks to employee. Employee should be provided by means of access and a way out from risks to safety and health. The preventive gadgets and irreversible belt would not have ensured safety from fire danger. (e) The working environment should be maintained with reasonably practicable, risk free and measures to curb health risks through adequate arrangements of facilities to ensure welfare at work. The oven thermal temperature through 12 hours cooling time was undermined. When the company failed to consider the 12 hours cooling and Mayes and Erickson died after a short time in oven temperatures exceeding 1000c. Regulation 3 of OHS Act emphasizes on the employer role when varying the procedure and functioning of a facility. Any changes and variation effort should ensure health, safety and protection for workers but the repair of the oven and procedure failed to ensure safety. Regulation 5.  (1) An employee requires compiling work permit for before commencement of facility work. The chief Engineer confirms that he had not done it and considered doing it later which is a total breach. If risks are seen, the people in charge should stop operation immediately until the risk is eradicated and solution improved. Regulation 22 (1) of OHS anyone working in an environment or a facility should have protective headwear or a cap all times while on project to adequately protect the head against the risky impacts. The protective gear provided was less effective as they are termed as ‘thin’. Regulation 37 set the corporate role in offense through directly or indirectly neglect, consent or connivance of director or manager making them guilty of offence. Since the repair work was for the interest of the company both the directors and the manager are liable. In the case in question, the employees failed to provide a safe environment by ignoring, the requirements of the oven manufacturers that the oven be switched off for at least twelve hours anyone can get inside to repair it. This provision was ignored, leading to death of Erickson and Mayes. There was also a safer way of getting the two in the oven through opening of side panels which would probably have provided possibility of escape for the employees once they realized that the oven was too hot. Opening of the panels was also likely to allow better air circulation, thus cooling the oven and providing enough air for them to breathe. By ignoring this safety procedure contributed greatly to the death of the victims. All the above actions on the part of the directors and particularly the chief engineer paint a picture of gross negligence on the part of the company, which is the employer and owes its employees a duty of care. This negligence led to death of the two individuals and may be prosecuted as involuntary manslaughter due to the fact that these deaths could be avoided. Through the identification principle, the director involved in the decisions that lead the tragedy has to be identified in order for the company to be prosecuted for the mentioned reasons. If a verdict can be made for the prosecution, the company would most likely be charged a fine. Options for relatives to pursue civil action Relatives of the victims may pursue civil action against the company on the basis of the company’s negligence which led to death of the two men. They can argue that the company failed to take sufficient care which led to the injury and death of the two men. The circumstances surrounding their injury and death show clearly that it was foreseeable that there was the possibility of them getting harmed and yet the company did not take any concrete steps to prevent it. The company’s negligence can also be based its omission of important procedures necessary while performing duties of the nature the victims were performing. The company, through the directors involved in the fateful maintenance procedure was negligent of its duties to its employees due to the failure to follow the manufacturer’s instructions regarding repairs of the nature being undertaken. They failed to invite technicians from the oven manufacturer to perform the repairs necessary. The assumption is that they failed to do this to avoid incurring the extra cost that would be involved. This displays an extremely callous attitude on the part of the company. Another instance where negligence is clearly shown is due to the fact that the oven had been switched off for only two hours instead of the recommended twelve hours which meant that the interior was still hot by the time the two gentlemen got in this, again, was probably to ensure that the oven’s down time was maintained to as short as possible even if that meant jeopardizing the lives of workers. The chief engineer and the rest of the company’s top brass also failed to have the side panels opened and instead had the repair team get into the oven through the front. This prevented the team from having an easy way out in case the oven was not safe, opening of the hatch would also have allowed freer circulation of air allowing the oven to cool faster. It was also negligent of the company not to provide Erickson and Mayes with protective clothing while they were getting into the oven, the ones provided were substandard and an afterthought. The Chief Engineer had not set up a permit to work system for the company; this meant there were no sufficient checks that would ensure that the safety of employees involved in hazardous maintenance exercises was properly investigated before an action could be taken. All these actions were below the standard of care that employers are duty bound to provide for their employees. The victims’ families, should they prove that the employers were, indeed negligent, the court may award them damages to compensate for the suffering they went through due to loss of their loved ones and also for the loss of earnings that were previously being made by the deceased to ensure that the families would be well provided for in the absence of their hitherto breadwinner. What should be proved for the action to succeed The law of negligence is bases on the fault principle, which is best embodied in the case of Donoghue v. Stevenson (1932), this principle and the case law are used to define duty of care as is Caparo v Dickman (1990) a case law that now provides a three steps for testing duty of care, these steps include that, (a) harm must be reasonably foreseeable (b) There should be a relationship of proximity between the plaintiff and defendant (c) And that it must be fair, just and reasonable to impose liability on the individual on which it is imposed All these ought to be proved in the case against Fresha Bakery to show that the company indeed had a duty of care to the victims, a duty in which it failed. This failure to perform the duty in question is referred to as breach of duty. The plaintiff (in this case the families) would be required to prove that the company knowingly exposed the victims to dangerous conditions and that any reasonable person would have realized these dangers and avoided them. The two tests are referred to as subjective and objective tests, respectively (Hodgson, 2011). How the company could defend itself In order for the company to be held liable, Factual causation has to be proved. The families of the victims need to demonstrate that the activities of the company heads were the actual cause of their loss. Since the establishment was a bakery with machinery that was likely to fail from time to time and it had a chief engineer, an assumption is made that the two victims worked under the engineer and had some knowledge of the workings of the oven and the risks involved in their undertaking and yet they went ahead with it anyway. They therefore could have refused to undertake the challenge but they did not. This could be reinforced by Hayes indication to friends that he was about to undertake a ‘challenge’ the following day. Erickson, on the other hand, was in a hurry to go watch a football match on television which could have contributed to the less time spent waiting for the oven to cool. References Caparo Industries v Dickman, [1990] 1 All ER 568 Donoghue (or McAlister) v Stevenson, [1932] All ER Rep 1; [1932] AC 562; House of Lords Hodgson, D., 2011. Intervening Causation Law: Common Law, Civil Law and Comparative Law Perspectives. Lambert Academic Publishing. Read More