production management
The significance of health
and safety law continues to
grow, catalysed by the
new Corporate
Manslaughter Act 2008
and the relatively
unnoticed Health and
Safety (Offences) Act
2008. Stuart Ponting,
specialist health and safety
solicitor looks at some of
the continuing mysteries
surrounding health and
safety law.
Health and safety is so
misunderstood these days that even
the Health and Safety Executive has
embarked on a campaign entitled
‘Putting the record straight’ in an
attempt to stop health and safety
myths becoming urban legend.
However, whilst the HSE tries to play
down the ever-increasing impact of
health and safety issues on
businesses, a significant number of
misconceptions about the serious
consequences of getting health and
safety issues wrong still exist.
Myth One: Health and safety law
enforcement is just a bit more redtape
and form-filling.
So many think that the enforcement of
health and safety is like getting a
parking ticket. But the sharp end of
health and safety law enforcement is
dealt with by the Health and Safety
Executive through the Criminal Justice
System, not by civil servants in local
government or in the ‘health and safety
department’ of the local council. In
plain English, we are talking about the
good old-fashioned criminal law. If a
business is prosecuted by the HSE, it is
prosecuted in the Magistrates Court or
the Crown Court. Just like any other
criminal prosecution, these cases usually
involve solicitors, barristers, judges and
juries, money and time. Companies who
are prosecuted by the HSE often believe
that they can negotiate or settle their
case with the HSE by paying
compensation or a fine; this isn’t
Ten health and
safety myths
‘settling’ a case, this is pleading guilty to
criminal offences. Pleading guilty to a
criminal offence results in a conviction
and a criminal record and crucially,
there is no ability to settle ‘out of court’.
Myth Two: If I am taken to court, the
HSE must prove what I did wrong
and what I should have done.
If only. The House of Lords case of R v
Chargot [2008] makes it quite clear that
all the prosecution must prove in health
and safety prosecution is that there was a
risk of harm or injury to employees or
third parties. They do not have to prove
anything more. Health and Safety law
contains a reverse burden of proof so, the
defendant - it could be you - must prove
that you did take all reasonably
practicable measures to ensure the
health, safety and welfare of your
employees or those who come into
contact with your business. The Health
and Safety Executive do not have to prove
that you did not take all reasonably
practicable measures. After a serious or
fatal accident, it can often be very
difficult to argue that you had taken all
reasonably practicable measures; after
all, if you had, there wouldn’t have been
an accident would there?
Myth Three: Our insurance will cover
our costs and any fine imposed by
the Courts.
Depending on the cover provided under
your insurance policy, you may have
legal expenses cover but it is by no means
guaranteed. Legal expenses insurance
will usually cover the costs of your own
lawyers and possibly any experts that you
engage to help you with your case but it
is very unlikely to cover anything else.
You should also be wary of the type of
cover that you may have in place. Some
insurance policies will cover your legal
fees from the date the Summons is issued
whilst others kick-in much earlier
18 MWP july 2009
To view a Ceros magazine you need to have JavaScript enabled in your browser and have the flash player 8 or higher installed. To install the latest flash player, click the icon above, install the flash plugin and then click here to refresh this page.