Cert 01

PAUL RANDALL AND ASSOCIATES
HEALTH AND SAFETY TRAINING
Health and safety foundations
NEBOSH Certificate unit 1

1 Introduction ....................................................................................... 5
1.1 The NEBOSH Certificate and its coverage of the law .............. 5
2 The multi-disciplinary nature of health and safety ............................. 6
3 Basic health, safety and legal terminology ........................................ 6
3.1 Health, safety, welfare and environmental protection ............... 6
3.2 Accidents, dangerous occurrences, near-misses and work-
related ill-health ........................................................................ 8
3.3 Hazard, risk and danger ........................................................... 9
3.4 An introduction to the law ........................................................ 11
3.5 Establishing guilt in civil and criminal cases ........................... 14
4 Moral, legal and financial arguments .............................................. 16
4.1 Managing risk, the driving forces ............................................ 16
4.2 The size of the health and safety problem .............................. 18
4.3 Employer’s duty of care, rights of workers .............................. 20
4.4 ... a safe place of work, safe plant, safe systems ... ............... 24
4.5 Introduction to the court system .............................................. 25
4.5.1 Criminal courts ............................................................... 26
4.5.2 Civil courts ..................................................................... 28
4.5.3 European Court of Justice ............................................. 28
4.6 Criminal liabilities .................................................................... 29
4.6.1 The criminal law framework ........................................... 29
4.6.2 Enforcement of health and safety at work legislation .... 30
4.6.3 Powers of inspectors ..................................................... 31
4.6.4 Enforcement notices ...................................................... 32
4.6.5 Summary offences, indictment ....................................... 33
4.6.6 Employment tribunals .................................................... 34
4.7 Civil liabilities .......................................................................... 36
4.7.1 Tort ................................................................................. 36
4.7.2 Vicarious liability ............................................................ 39
4.7.3 Contributory negligence ................................................. 39
4.8 Direct and indirect costs of accidents and ill-health ................ 41
... continued overleaf ...

5 The legal framework for regulating health and safety ..................... 42

5.1 The role of the European Union .............................................. 42
5.2 The Health and Safety at Work etc Act 1974 .......................... 44
5.2.1 General HASAWA duties ............................................... 44
5.2.2 Acts and Regulations ..................................................... 46
5.2.3 Approved codes of practice ........................................... 48
5.2.4 Guidance notes .............................................................. 49
5.3 Absolute and qualified duties .................................................. 49
5.3.1 Absolute duties .............................................................. 49
5.3.2 Qualified duties .............................................................. 50
5.3.3 So far as is practicable .................................................. 51
5.3.4 So far as is reasonably practicable ................................ 51
5.4 The roles and functions of external agencies, the powers of
inspectors ............................................................................... 53
5.4.1 Fire authorities, fire certificates ...................................... 54
5.4.2 The Scottish Environment Protection Agency SEPA,
Environment Agency ............................................................... 54
5.4.3 Insurance companies ..................................................... 56
4 paulrandallandassociates.com
1 Introduction
The syllabus content for unit 1 encompasses:
The multi-disciplinary nature of health and safety; the obstacles to good

standards of health and safety (complexity, competing and conflicting
demands, behavioural issues).
Meanings of and distinctions between ... basic terms which will be needed
and illuminated during the course of the syllabus study
The moral, legal and financial arguments for maintaining good standards of
health and safety ...
The legal framework for regulating health and safety ...
A framework for health and safety management: setting policy; ...
1.1 The NEBOSH Certificate and its coverage of the law

Over the 20 years of the Certificate, there have always been
differing views about how the supposedly thorny subject of the
law should be tackled ... for some students, it is - or at least
initially imagined to be - the hardest part of the whole syllabus.
So how do you teach the law: by diving straight in at the law deep
end or, as we did in our previous Certificate package, gradually
introducing the students to pieces of relevant legislation - for
example the Noise Regulations in the section on noise - building
up to the general principles of the law towards the end.
On reaching these general principles of the law many students
were very pleasantly suprised by how much they had already
absorbed. Furthermore, because the old syllabus placed the law
by itself at the very end, it was not difficult for us to adopt this
‘softly-softly’ approach.
However, in the syllabus you are studying (introduced late 2002)
NEBOSH now integrate the law with moral and financial consid-
erations in unit 1. Integrating the law with these other two health
and safety ‘drivers’ is, we think, very sensible but it does of course
mean that we can no longer gently introduce the student to the
law, you have to come to terms with it early in your study.
paulrandallandassociates.com 5
However, you still of course have the choice of initially working

through unit 1 fairly quickly and then coming back to it later for
more detailed study when you have been introduced to the
various individual pieces of legislation encompassed by the
remainder of the syllabus.
Obviously only you and your tutor can decide which is the best
approach for you to adopt.
2 The multi-disciplinary nature of health and

safety
At this stage in your studies, the main thing that we can say about
‘The multi-disciplinary nature of health and safety ...’ is that this is
in effect what the whole syllabus is about; if we were able to
encompass this in one paragraph you would have a very short
period of study. Of course, for many people, the multi-disciplinary
nature of the subject is one of its main attractions - human behav-
iour, engineering, organisational skills, imagination, balancing
conflicting demands, a bit of politics ... in other words a subject
that requires maturity - the maturity that comes not necessarily
with age, but with experience, imagination and compassion.
3 Basic health, safety and legal terminology

This is our heading (it’s not very good is it, can you think of
better?) for the five diverse items which NEBOSH include under
their heading ‘Meanings of and distinctions between ...’.
3.1 Health, safety, welfare and environmental protection

You will know that the first stirrings of concern for the welfare of
industrial workers were directed towards the safety of machines
and of machine guarding and you can imagine that in a version of
the NEBOSH Certificate circa 1850, the heading here would be:
‘Safety’ or maybe ‘Machine safety’. Health concerns were largely
restricted to the immediate effects of high levels of toxic fumes
and gases and heat (we call these acute effects).
(We are aware that we have not yet formally defined ‘health’.)
Later, health concerns extended to long term (chronic) effects:

coal miners pneumoconiosis, lead poisoning, asbestos.
In some respects, ‘health’ may be said to have fully come of age,
legislatively speaking, in the late 1980s with the introduction of
the COSHH legislation of 1988 and the Noise Regulations 1989.
The ‘six-pack’ legislation* of 1992 built upon The Health and
Safety at Work Act 1974 and in effect called upon employees and
workers to make an assessment of the risks presented by all the
hazards in the workplace - short term, long term, mechanical,
chemical, physical, ergonomic.
The third item in the heading of this section of our book - welfare -
is concerned with working conditions: lighting, ventilation, toilets.
Not necessarily life and death matters, but vitally important in
determining the overall ambience or climate of a workplace. The
important welfare legislative milestones would include The Facto-
ries Act 1961 and other legislation dealing with shops, offices and
railway premises.
All this ‘welfare’ legislation has now been superceded by, in
particular, The Workplace (Health, Safety and Welfare) Regula-
tions 1992 (often shortened to W(HSW)Regs, one of the mem-
bers of the ‘six-pack’).
Soon after the introduction of the six-pack a student commented
that the W(HSW)Regs sounded as if it would be the most impor-
tant of the six, simply because its name suggested that it encom-
passes more than the other five. Understandable, until you
actually go through the six-pack one by one. You will then see
that the W(HSW)Regs really do focus on welfare matters [the
W(hsW)Regs perhaps?]. In a sentence, as far as importance of
the members of the six-pack is concerned, we could say (and be
warned, we will say again!) that The Management of Health and
Safety at Work Regulations might be described as ‘first amongst
equals’.
* The Management of Health and Safety at Work Regulations 1999

The Workplace (Health, Safety and Welfare) Regulations 1992
The Provision and Use of Work Equipment Regulations 1998
The Manual Handling Operations Regulations 1992
The Personal Protective Equipment Regulations 1992
The Health and Safety (Display Screen Equipment) Regulations 1992
So, that’s safety, health and welfare, now for environmental

protection.
The major environmental legislative milestone is probably the
Environmental Protection Act 1990. Understandably, environ-
mental (‘outside the factory fence’) legislation has followed a
separate course from ‘inside the factory fence’ health and safety
legislation. Of course, what has changed over the years is the
role of ‘the safety person’ ... in the 1980s their role extended to
encompass health matters (in particular chemicals / COSHH and
noise) - the safety person often had to take on board these health
responsibilities as there was no-one else in the organisation who
could do so. In addition, in the 1980s and 1990s, the safety
person has frequently found him or herself having to get to grips
with ergonomic matters - checking computer screens and seating.
Now, in the early years of the new century, the safety person (by
now a safety-health-ergonomic person) is required to look beyond
the boundary of the workplace to the wider environment. The
Certificate syllabus which you are now studying encompasses, for
the first time, environmental matters; for example, the roles and
functions of the Environment Agency and the Scottish Environ-
mental Protection Agency form part of this unit 1 of the syllabus.
(The NEBOSH Certificate of 2002 reflects NEBOSH’s desire to,
as they say, ‘ensure a close match’ between their own syllabus
and the Employment National Training Organisation approved
standards. For more details, see Appendix 5 of the Certificate
syllabus, in particular look at the environment unit [unit H] of the
ENTO standards.)
3.2 Accidents, dangerous occurrences, near-misses and work-

related ill-health
These terms occur throughout the syllabus, in particular in unit 15
Incident investigation, recording and reporting. The full wording
of the syllabus at this place in unit 1 is as follows:
• Accidents, dangerous occurrences, near-misses and work-related ill-health
(physiological and psychological).
remember that we use a box like this
to show an extract from the NEBOSH syllabus
Earlier versions of the NEBOSH Certificate did not need to

expand on ‘work-related ill-health’ because it was taken as read
that this meant physiological ill-health. Nowadays of course,
everyone - workers, worker representatives, management - is
aware of the problems of stress, over-work, reduced levels of
concentration and so on, and the syllabus accomodates this as
‘psychological’.
3.3 Hazard, risk and danger

Consider:
“Watch yourself out there, that pathway is a real hazard ”.
“He took a risk overtaking on the bend”.
“That leaning wall looks really dangerous ”.
In occupational health and safety, the words hazard, risk and
danger(ous) have well-defined meanings; try swopping around
the words in the above phrases ... for example:
“He took a hazard overtaking on the bend”.
“That leaning wall looks really risky ”.
These two sentences don’t work do they? A leaning wall cannot
be said to be risky - walking beneath it may be; overtaking on a
bend creates a hazard. Thinking your way through the words in
this way can help you develop meanings for hazard, risk and
danger.
Q How would you distinguish between hazard and risk?
... as applied to health and safety:

Hazard is the potential to cause injury or ill-health (this can
include substances or machines, methods of work and other
aspects of work organisation).
Risk expresses:
• the likelihood that the harm from a particular hazard will be
realised
• the severity of the consequences if realised, for example:
» the number of people who might be affected
» the nature of the harm they would suffer
thus, the hazards associated with the leaning wall will translate
into a high risk if no steps are taken to fence it off, and into a low
risk if appropriate protective barriers and signs are employed.
Demolishing or re-building the wall would of course present new
hazards and those responsible for the work would have to under-
take a risk assessment before the work commenced.
It follows that both of the factors hazard and risk should be taken
into account when undertaking either a qualitative or a quantita-
tive risk assessment.
Danger is a state or condition in which personal injury is reason-
ably foreseeable. Danger can, for example, be associated with
situations such as:
• an employee trapped by a fork lift truck in a narrow gangway
where there are no restrictions on access or safe systems of
work in force
• an organisation’s financial well-being placed at risk because of
deficiencies in management systems
As you work through this NEBOSH study material you will find
that these terms - risk, hazard and danger - occur quite frequently
and, naturally, we try to be consistent in the way we use them.
Those of us who have watched the development of the various
NEBOSH qualifications over the last twenty years or so have
observed how NEBOSH themselves have noticeably tightened up
their use of terminology. This particularly applies to risk and
hazard, terms which, in the early 1980s tended to be used inter-
changeably.
3.4 An introduction to the law

The law is divided into two great branches, the criminal and the
civil, and of these much the greater is the civil.
The first point which needs to be clearly grasped, or the rest of
this book will never make sense, is that the distinction between
criminal and civil law does not reside in the nature of the wrongful
act involved. The same wrongful act can lead both to a civil and a
criminal law action.
For example, if an employer fails to guard to piece of machinery
and this failure leads to the injury of an employee, then the
employer could be prosecuted in the criminal courts by the
enforcement authority and sued for damages in the civil courts by
the injured employee. Yet, the wrongful act of failing to guard the
machine is the same in both cases. What really establishes the
difference between civil and criminal law is the purpose to which
the law is put and the intended results.
It is not the wrongful act which distinguishes between civil and

criminal law, rather it is the legal consequences which follow
from the wrongful act.
Another point which you may have noticed is that central to both
civil and criminal law actions is the notion of a wrongful act.
However, whereas in criminal law guilt remains with the person
responsible for the wrongful act, in civil law another person can
take over the liability for the damages resulting from another
person’s wrongful act. This form of liability is termed vicarious
liability.
In general, an employer is vicariously liable for the damages
caused by employees while they are acting in the course of their
employment and as a reasonable employee would act . (Strictly
speaking, this means that the employees are, as the law says, not
acting on a frolic of their own. So yes, ‘frolic’ is a legal word.)
The above are all key points which we will need to expand upon
in more depth later.
Legal expert Glanville Williams summarised the position in the

following neat way:
If the wrongful act is capable of being followed by what are called

criminal proceedings, that means that it is regarded as a crime. If it
is capable of being followed by civil proceedings, that means that it
is regarded as a civil wrong. If it is capable of being followed by
both, it is both a crime and a civil wrong.
Criminal and civil proceedings are easily distinguishable: the

procedures are different, the outcome is different, and the terminol-
ogy is different.
Learning the Law, Glanville Williams
At this stage in your study, you may find it helpful to have defini-
tions of criminal law and civil law:
Civil law
Civil law is concerned with the rights and duties of individuals
towards each other. (In many ways this is a formalisation of
the moral duties we have to each other.) Civil law includes:
• law of contract with its legal consequences, ie
» whether a promise is legally enforceable
• law of tort which is a civil wrong for which the remedy is an
action for damages. Examples of classes of tort* are:
» nuisance
» negligence
» defamation
» trespass
Criminal law
Criminal law characterises certain kinds of wrongdoing as
offences against the state, not necessarily violating the rights
of individuals, and punishable by the state. Crime is an act of
disobedience of this type of law, forbidden under pain of
punishment.
* tort comes from the Latin ‘tortus’ meaning ‘crooked or twisted’ and the
Norman-French ‘tort’ meaning ‘wrong’.
The main difference between civil and criminal law is the purpose
to which it is put. An individual will use the body of law (see
below) in order to pursue an action for damages through the civil
courts, the enforcement authority will use the same body of law to
prosecute in the criminal courts.
In occupational health and safety matters, the enforcement

authority is usually the Health and Safety Executive or the
local authority acting on its behalf.
The body of law is made up of statute law (written law in the form
of Acts and Regulations etc) and common law (decisions made
and principles adopted in previous cases and contained in what is
known as case-law).
Common law
Before the Norman Conquest, each area of the realm was
ruled over by local lords and barons. These had their own
established systems of law. Following the Norman Conquest,
a unified system of law, known as the King’s Justice, was
imposed on the entire realm. Because this law was the same
for everyone and for every region, it became known as the
common law.
Obviously it would have been physically impossible for the
King to have heard and tried every case of alleged law-
breaking personally. The Curia Regis were therefore ap-
pointed to administer the law on the King’s behalf. Although
the King’s law was never written down, these itinerant justices
who dealt with the legal disputes often met and recorded
important decisions to guide future justices faced with similar
cases. This helped both to establish a common law for all
people and to establish legal continuity without undue rigidity.
In addition to their different usages, civil and criminal law have

other distinct features which can be summarised as follows:
criminal law civil law

action brought by the State action brought by an individual
intended result is punishment intended result is damages*
punishment is non-insurable insurance can be obtained to
cover liability for damages†
action can be taken irrespective action can be taken only where
of whether loss has occurred loss has occurred
mainly draws upon statute law mainly involves common law
3.5 Establishing guilt in civil and criminal cases

Because criminal law involves guilt and punishment, the courts
require that the defendant be found guilty beyond reasonable
doubt. That is, the evidence must be such that the guilt has been
established to a degree which is beyond that which a reasonable
person could continue to doubt. Civil law, on the other hand,
involves liability for loss suffered rather than punishment, there-
fore the onus of proof demanded by the courts is less stringent.
In civil law it is enough that the defendant is found liable for the
loss on the balance of probabilities. That is to say that when the
evidence from both parties is weighed in the balance, the evi-
dence of the plaintiff (the person making the claim) is found to be
more convincing than that of the defendant.
Obviously there is some overlap between the two systems. If, for
example, the employer we mentioned earlier were found guilty,
beyond reasonable doubt, in the criminal courts for failing to
guard a piece of equipment which injured an employee, it would
be very difficult for that same employer to defend a civil action, on
the balance of probabilities, taken by the injured employee for
compensation for the loss suffered.
* ie compensation for loss suffered. This means, in theory, being no

better or no worse off than before the loss occurred. In practice it is
difficult to compensate in financial terms for physical injury or ill-health.
†
In fact it is a legal requirement that most employers have employers’
liability insurance for injured employees to claim against - see later.
You my find the figure below helpful as a reminder of some of the

points we have covered so far.
The body of law

statute law common law
evo
form
of
lves
part
Acts and interprets
case-law
Regulations
used by: individuals § the State
to achieve: damages punishment
through: Civil Courts Criminal Courts
Figure 1 The law and the courts

§
In civil law, only individuals are considered, hence even large
organisations would be classed as ‘corporate bodies’.
That brings to an end section 3 of our book which we entitled

‘Basic health, safety and legal terminology’. As we explained, this
was our catch-all heading for the various items NEBOSH brought
together under their syllabus heading of ‘Meanings of and distinc-
tions between’. (Surely the least explanatory heading in the
entire syllabus!)
If you look ahead through the remainder of the syllabus for unit 1,
you will see that many of the concepts we have already intro-
duced will re-appear for more detailed consideration.
4 Moral, legal and financial arguments

4.1 Managing risk, the driving forces
It is convenient to classify the main reasons that organisations
have for managing risk within their businesses as being moral,
legal and financial.
In order to get management and employee commitment, a mix of
all three should be used - they are inter-related.
Concentrating on one driver, whilst ignoring the other two, will
greatly undermine the effectiveness of any health and safety
programme.
Moral reasons
This is based on the premise that it is the duty of any person
to ensure the general well-being of all other persons. This
places a duty on all employers - or persons in charge of work
operations - to provide a safe and healthy working environ-
ment for all employees.
This is referred to as the common law duty of care.
An illustration of this occurs in an important legal case of 1938
(Wilsons and Clyde Coal Co Ltd v English) where Lord Wright
said that “the whole course of authority consistently recog-
nises a duty which rests on the employer, and which is per-
sonal to the employer, to take reasonable care for the safety of
his workmen, whether the employer be an individual, a firm or
a company, and whether or not the employer takes any share
in the conduct of the operations”.
You can see that in talking about moral reasons for maintaining
good standards of health and safety, we have immediately started
to talk about legal reasons - quite right too, there is an overlap,
the law is not a huge set of un-readable paper, it has a moral
dimension to it.
You may have heard from previous Certificate candidates and
gathered from looking at past papers that ‘NEBOSH don’t ask
questions on specific legal cases at Certificate level’. And indeed
that’s generally true, but there are occasions when we will men-
tion judgements that are of fundamental importance, not because
you will get a question on (say) the Wilsons and Clyde Coal case
but because the words used in the case have passed into the
‘language’ of health and safety.
Legal reasons
The Health and Safety at Work Act 1974 places a general duty
on an employer to ensure - so far as is reasonably practica-
ble - the health, safety and welfare of all employees. (Thus
you can see that, a quarter of a century after the Wilsons case
just mentioned, the judgement of that case became enshrined
in the legislation.) ‘Reasonably practicable’ implies a balance
between the cost of controlling the risk against the cost of any
losses arising because the risk has not been properly man-
aged.
This, then, is the employers’ duty; there are also individual
duties placed on employees to work safely.
Any breach of the statutory duties can result in the employer
being involved in enforcement action which could result in
criminal proceedings.
The legal reasons for managing health and safety therefore
clearly involve prosecution avoidance which of course in turn
relates to economic considerations, not only the fines that may be
imposed, but also the financial impact of the closure of premises
or the curtailment of certain processes by order of health and
safety inspectors.
Economic reasons
There are two types of accident costs: insured/direct costs,
and uninsured/indirect costs.
The insured/direct costs are covered by the employer’s com-
pulsory insurance which, together with any public liability
insurance, will be the organisation’s insured cost.
The uninsured/indirect costs of accidents will not be covered
by insurance and, hence, will be over and above any insured
costs. Such hidden costs might include: replacement labour
and so on. (Later in this unit we return to direct and indirect
costs.)
Drawing this section to a close ... as we said, all three reasons for
maintaining good standards of health and safety - moral, legal
and financial are inter-related and are, correctly, brought together
by NEBOSH in this unit.
4.2 The size of the health and safety problem

Do you make frequent reference to your copy of the Certificate
syllabus? You must do, not only for the syllabus content but also
because of the all the background information that the syllabus
provides.
Accordingly, turn to your copy of the NEBOSH syllabus, read the
introduction on page 1, paragraph 1.2.
Q What are your thoughts on what NEBOSH has to say?
... we have to admit, here we have a bone to pick with NEBOSH

and indeed many other authorities and professional bodies who
present ‘the size of the health and safety problem’ in just this way:
300 or so deaths of workers in accidents + perhaps 150 deaths of
members of the public, followed by vague comments about ill-
health ...
... what about all the other deaths: members of the public killed by
vehicles ‘at work’, why no mention of these? Above all, why are
7000–8000 deaths from work-related ill-health seemingly counted
as being less important than the 300 accident deaths? Of course,
a death involving a fall from a roof can be immediately classified
as a work-related accident; a worker whose life is shortened by
asthma years after exposure to agricultural products is much less
likely to ‘get noticed’ in the mortality records. So, necessarily the
figure of 8000 or so deaths from ‘slow accidents’ is an estimate,
but it is not a figure plucked randomly from the air, it is broadly
accepted by a large cross section of epidemiologists, occupa-
tional hygienists and statisticians.
A final thought is that the way the figures are presented (‘ordinary’
accidents first, ‘slow accidents’ as an after-thought) seems to us
to be a hang-over from the era - we discussed this earlier - when
‘health and safety’ focussed on machine safety.
So, now we have got that off our chest - unlike the worker who
can never get the effects of fibrosis off his chest.
Compensation claims
Over the many years we have been involved in health and
safety we have naturally found ourself focussing on the victim
- on reading the phrase ‘the size of the health and safety
problem ...’ we automatically think of the numbers involved,
the nature of their illnesses and accidents and so on.
However, we must emphasise that ‘the size of the health and
safety problem ...’ can also be quantified in terms of compen-
sation claims; money talks. A major development in the world
of health and safety in recent years is the increasing involve-
ment of the insurance industry - not ‘just’ paying out money,
but in training, auditing, setting standards and so on.
4.3 Employer’s duty of care, rights of workers

This a subject upon which we have already touched; let us start
by saying a little more about case-law:
Case-law
Case-law has an important role in both establishing and
modifying the common law and in interpreting the meaning of
terms, phrases and requirements found in statute law but not
defined or clarified in the relevant Act or Regulation.
One important example of a leading decision in the field of
occupational health and safety involves the case we have
already mentioned, Wilsons and Clyde Coal Co Ltd v English
(1938)* which clarifies the four main elements an employer
owes his employees under the duty of care ...
Duties of care are established wherever a legal relationship†
exists between the parties involved. It is the legal relationship
which establishes the relevant duty of care. For example:
• the master-servant (or employer-employee) relationship
• the manufacturer/supplier-customer relationship
• the occupier-visitor relationship
Often, statutory obligations are imposed in addition to, or instead
of, the common law duty of care.
* In civil law cases, the names of the plaintiff and the defendant are cited
in that order. In this case, Mr English was the injured party but his name
appears second here because the ruling was given at a hearing at which
his employers appealed against an earlier award of damages. In most
criminal law cases the term ‘R’ is used instead of the plaintiff as it is the
State which brings the prosecution, technically on behalf of the Sover-
eign. ‘R’ stands either for Rex (ie King) or for Regina (ie Queen).
†
It is important to remember that this legal relationship does not have to
be in writing, our actions can be taken as evidence that the relationship
exists. For example, going to help someone who collapses entails our
entering into a relationship with them. The common law would require
that we act as a reasonable person would act in the circumstances. The
benchmark for what is to count as reasonable would depend upon our
level of competence. A reasonable first-aider would be expected to do
more than a lay-person, for example.
In the Wilsons case†, the employers’ duties towards their employ-

ees were identified as being the:
• provision and maintenance of a safe place of work
• provision and maintenance of a safe system of work
• provision and maintenance of safe plant and appliances
• provision of competent fellow employees
Boundaries of the duty of care
It should be remembered that the duty of care extends to the
individual and not towards what we might call ‘the average
person’. If an employer knows, or if a reasonable employer
could have foreseen, that an individual employee is at greater
risk than an average employee, then the employer’s duty of
care towards that individual employee is correspondingly
greater.
Q Think of examples of employees who could be at a greater

risk than the average employee.
†
An example of the master-servant duty of care.
A Employees at greater risk include:

• workers who are disabled in some way (for example, have one
eye † or need to use a wheelchair)
• workers with a handicap such as colour-blindness or hearing
difficulties
• inexperienced workers †
• young workers
• women who are, or might become, pregnant
• workers experiencing stress
The last point has become part of the duty of care owed by
employers to their employees through a recent case involving a
social worker who suffered a nervous breakdown through
overwork. In this case, Walker v Northumberland County Council
(1994), it was held that the duty to provide and maintain a safe
system of work extended to protecting the employee from psycho-
logical as well as physical injury. (As mentioned earlier, the
NEBOSH Certificate syllabus now specifically mentions work-
related psychological illness.)
Was the injury foreseeable?
However, it should always be kept firmly in mind that the
existence of a duty of care does not automatically mean that
that person is always liable for any losses that may occur. All
that is required is that the person owing the duty of care does
all that a reasonable person would do in the circumstances to
satisfy that duty of care. A key test being: ‘was the injury
suffered foreseeable?’ Where the answer is ‘yes’, the next
question would be, ‘what would a reasonable person have
done to prevent this foreseeable injury?’
†
In Byers v Head Wrightson and Co Ltd (1961) it was held that greater
precautions are necessary when dealing with young or inexperienced
workers. In Paris v Stepney Borough Council (1951) it was held that the
Council had a greater duty of care towards the remaining eye of a one-
eyed man.
Within the course of employment

With regard to the master-servant relationship, the employer’s
duty of care only extends to cover employees acting within the
course of their employment and as a reasonable employee
would act. Much legal ink has been spilled over these two
points and we can only touch upon some of the key param-
eters in this brief discussion.
Travelling to and from work is not normally held to be within
the course of employment (although it may be if you are paid
travelling expenses from home rather than from your work-
place), whereas travelling between sites on company business
will normally be held to be part of the course of your employ-
ment.
Using the company’s equipment to repair parts for your car
during the lunch-break will not normally be regarded as part of
the course of your employment, unless your employer is
aware that you are doing it and has condoned your actions by
not taking precautions to stop it (putting up a sign will probably
be held by the court not to be sufficient; a reasonable em-
ployer would have taken steps to isolate the machine physi-
cally!).
Again, you will note, it is the test of foreseeability which is
crucial. The court will not judge whether the employer did
foresee the likelihood of injury, but rather whether a reason-
able employer would have foreseen such a likelihood and, if
so, what actions such a reasonable employer would have
taken to prevent the likelihood from becoming a reality.
Responsibilities of employees
Lastly, it should be borne in mind that the duty of care created
by the master-servant relationship operates in both directions.
As well as placing a duty of care upon employers to act as a
reasonable employer with regard to the health and safety of
their employees, it also places a duty of care upon employees
to act as a reasonable employee would act and not to cause
their employer loss.
This was established in the case of Lister v Romford Ice and

Cold Storage Co Ltd (1957) where a father and son were
working together. The father was injured and successfully
made a claim against the employer. The employer’s insurance
company then made a successful claim against the son,
holding him responsible for their losses*.
4.4 ... a safe place of work, safe plant, safe systems ...
Although we have not yet outlined the full extent of The Health
and Safety at Work Act 1974 (look ahead to section 5.2 of our
book if you want to see such an overview), the syllabus requires
us to turn now to ...
• The employer’s common and statutory duties to provide a safe place of

work, safe plant and equipment, safe systems of work, training and
supervision, and competent employees.
... which in practice means that we must turn to section 2(1) of

HASAWA. This requires employers to ensure the health, safety
and welfare of employees while at work. Section 2(2)(a–e) of
HASAWA amplifies this general requirement, without weakening it
in any way, by explicitly requiring the employer, so far as is
reasonably practicable, to:
• provide and maintain safe plant and safe systems of work
• make arrangements for ensuring safe means of handling, use,
storage and transport of articles and substances
• provide information, instruction, training and supervision
(competent employees)
• provide a safe place of work
• provide and maintain safe access to and egress from that
workplace
• provide and maintain a safe working environment and ad-
equate welfare facilities
* The Association of British Insurers made a statement following the

result in which they said that this was a ‘special’ case and that normally
they would not pursue employees through the courts in this way.
Whilst looking at employers duties, it seems sensible at this point

to say a few words on employees duties.
Employee duties
Section 7 (a) and (b) of HASAWA requires all employees while
at work to:
• take reasonable care for their own health and safety and
that of others who may be affected by what they do or by
their failure to do what they should.
• co-operate with their employer or any other person, so far
as is necessary, to enable the employer or other person to
perform or comply with any requirement or duty imposed
under a relevant statutory provision.
These HASAWA duties have been extended by duties con-
tained in The Management of Health and Safety at Work
Regulations 1999, as we shall see later.
That brings to an end this brief section which was concerned with
the employer’s duties with regard to a safe place of work etc;
brief, but as important as anything in this book, indeed as impor-
tant as anything in the Certificate syllabus.
Please note: as you will appreciate, we are working our way
through the bullet points given in the NEBOSH syllabus under the
heading ‘The moral, legal and financial arguments ...’. The next
NEBOSH bullet points are concerned with criminal liabilities and
civil liabilities. Before looking at these we feel it would be useful
to introduce you to the system of criminal and civil courts.
4.5 Introduction to the court system

Before we discuss the main courts utilised in civil and criminal
law, you may find the figure over the page useful in showing how
they relate to each other. In particular it shows where initial
hearings are held and where the cases are referred if there is an
appeal against a judgment. You should note that this is a much
simplified structure purely of relevance to the field of health and
safety. In practice, a much more complex court system is in
operation. If you wish to discover more, then any A-level law
book will contain a much fuller outline of the court system in
relation to the law in general.
Figure 2 Main courts European Court

and routes of appeal of Justice
rules on a limited range of issues only
House of Lords
appeals
Court of Appeal
Civil Criminal
Division Division
appeals
High Court Crown Court
Magistrates’ on indictment
County Court
Court
claims over claims up to summary conviction

£50 000 £50 000
4.5.1 Criminal courts

Criminal cases are heard initially in a Magistrates’ Court. Minor
offences can be decided there, ie tried summarily. However, if the
Magistrates’ Court feels that its powers of sentencing, following a
successful prosecution, are too limited, it can send the case for
sentencing to a higher court, a process known as indictment.
Prosecutions for health and safety offences are brought by an
enforcement officer*, who is allowed to prosecute at Magistrates’
Court level even though not legally qualified.
* Who the enforcement officer is will depend upon the industrial sector
involved. In the main, local authority environmental health officers
enforce health and safety legislation in offices, shops, commercial
premises and food premises, whereas HSE inspectors enforce it in
factories, fairgrounds, industrial premises and schools and on construc-
tion sites.
For serious offences, the enforcement officer may ask the Magis-
trates’ Court to commit the defendant for trial on indictment. The
Magistrates’ Court will then read the indictment containing the
bare bones of the case and if it decides prima facie (on the face
of it) that there is a case to answer, the case will be heard before
a judge and jury. The defendant is also given the opportunity to
elect for trial before a jury in the Crown Court rather than before a
Magistrates’ Court.
Magistrates have the power to impose a fine† of up to £20 000 for
each breach of sections 2–6 of The Health and Safety at Work
Act 1974 (we have already looked briefly at section 2 of the Act).
Breaches of other sections of the Act and of associated legislation
carry a maximum fine of £5000 per breach. Magistrates also
have the power to impose custodial sentences of up to six months
for a limited range of offences¶.
The Crown Court can impose unlimited fines on those found guilty
of committing an offence. It can also, for a limited range of
offences*, impose custodial sentences of up to two years.
In some cases the police may take action against an individual for
manslaughter, where a death at work is attributable to that per-
son’s gross negligence or recklessness which amounts to reck-
less disregard for human life†.
†
These fines are correct at the time of writing, but it is highly likely that
they will be increased in the not too distant future.
¶
For failing to comply with an improvement or prohibition notice (we shall
return to these later) or a court order. A court order could be imposed, for
example, when someone is convicted of an offence but given a time limit
by the court in which to put matters right.
* For failing to comply with an improvement or prohibition notice, for
carrying out work without a licence where such work requires a licence,
and for offences relating to explosives.
†
The Law Society has recommended the introduction of a new offence
called ‘corporate manslaughter’ in order that corporate bodies might
more easily be tried in a similar manner. You may also wish to bear in
mind that where an individual company director is found guilty under
health and safety legislation, (s)he can also be disqualified from the office
of director under the provisions contained in The Companies Act and its
associated legislation.
Appeals proceed up the court structure, eg appeals from the

Magistrates’ Court are heard in the Crown Court. The court
system also adopts the use of precedents, which can either be
binding or persuasive §.
4.5.2 Civil courts

In general, it is the size of the claim being made which determines
where a civil action will be heard. Personal injury claims of up to
£50 000 are normally heard in the County Court and such claims
exceeding £50 000 are normally heard in the High Court. Similar
systems of appeal and precedence apply as in Criminal Courts*.
4.5.3 European Court of Justice

The European Court of Justice, which is based in Luxembourg,
may hear appeals from any member state court on a matter
where a decision is required on the interpretation of European-
based legislation.
That concludes our brief look at the system of criminal and civil
courts; now to the next bullet point in the NEBOSH syllabus,
criminal liabilities.
§
Basically, a decision made in a higher court in a previous case, on a
matter which is substantially similar to the case being heard, is binding
upon a lower court - in that it has to be followed when a decision is
made. However, a decision in a court at the same level as that hearing
the case is only persuasive upon the court - in the sense that it has to be
taken into account when a decision is made. The use of precedence
allows for a consistency of legal judgements without making the law too
inflexible.
* However, a ‘leap-frog’ procedure allows appeals from the High Court to
go straight to the House of Lords where a decision is required on an
important matter of law, the construction of a statute, or where a previous
binding decision of a higher court would result in an unjust decision in the
case being heard.
4.6 Criminal liabilities
4.6.1 The criminal law framework

From a health and safety viewpoint, The Health and Safety at
Work etc Act 1974 (the ‘etc’ is actually part of the name, although
often missed out) is the main Act.
Some pre-1974 health and safety legislation survived the arrival
of HASAWA, remaining in force and becoming adopted by
HASAWA. These so-called relevant statutory provisions are listed
in Schedule 1 of HASAWA. Much of this pre-HASAWA legislation
(notably The Factories Act 1961) has now been or is being
repealed. The legislation made under HASAWA (often originating
as Directives made in Europe) is continually growing. Figure 3
outlines the framework of health and safety legislation.
The Health and Safety at

Work etc Act 1974
prior legislation listed in Regulations made under

Schedule 1 of HASAWA section 15 of HASAWA
The Management of Health,

Safety at Work Regulations 1999
a whole raft of associated

Regulations made under
legislation
the enabling powers in
the above legislation
associated approved
codes of practice
underpinning guidance notes,

British and European
Standards, etc
Figure 3 Framework of UK health and safety legislation
4.6.2 Enforcement of health and safety at work legislation

Enforcement of health and safety at work legislation is governed
by a series of measures, the principal of which is The Health and
Safety at Work etc Act 1974. Both the Act and Regulations made
under the Act can provide for enforcement.
Enforcement of health and safety at work legislation is the re-
sponsibility of various authorities including the Secretary of State,
The Health and Safety Commission (HSC), The Health and
Safety Executive (HSE), local authorities, fire authorities, the
Environment Agency and the Scottish Environment Protection
Agency.
The HSC and the HSE were established by section 10 of
HASAWA.
The HSC consists of a Chairman and between six and nine other
members appointed by the Secretary of State. The members are
selected to represent employers, employees and other interest
groups.
The HSE consists of three persons, one of whom is appointed by
the HSC, with the approval of the Secretary of State, to be the
Director General of the HSE.
In general terms, the HSC is a policy body and the HSE is its
enforcement arm. The HSC, for example, will decide if new
legislation will be required to implement European Directives and
will target industries and activities which HSE need to concentrate
upon. In addition, the HSC has the power to produce and issue
approved codes of practice.
In order to perform its enforcement role, the HSE has to appoint
specialist and general inspectors to work on its behalf. These
inspectors are granted certain rights under HASAWA; inspectors
are issued with warrant cards by the HSE.
In addition, local authority environmental health inspectors carry
out certain roles of behalf of the HSE. In general, HSE inspectors
enforce industrial premises and fairgrounds, whereas local
authority inspectors enforce commercial premises, retail premises
and food premises.
The above division of enforcement responsibility is provided for in

section 18 of the Act with the precise division of responsibility
being contained in The Health and Safety (Enforcing Authority)
Regulations 1989.
4.6.3 Powers of inspectors
The appointment of inspectors is governed by section 19 of the
Act. The powers of inspectors are contained in section 20; these
can briefly be outlined as follows:
• to enter premises at any time they deem to be reasonable
• to take along a police constable if they believe they will be
obstructed
• to take along another person and any equipment (perhaps a
specialist inspector)
• to examine and investigate
• to direct that premises and anything within them be left undis-
turbed
• to take measurements and photographs and make recordings
• to take samples
• to order the dismantling or testing of any article or substance
which appears to have caused danger (only damaging or
destroying it where necessary)
• to take possession of and detain an article or substance (for
examination, to ensure it is not tampered with and to ensure it
is available in evidence for any proceedings)
• to require any person to answer questions and to sign a
declaration of the truth of the answers given
• to require the production of books and documents for the
purpose of inspection and copying
• to require any necessary facilities and assistance
• any other powers which are necessary
Under section 25 of the Act, an inspector has the power to render
harmless an article or substance which is a cause of imminent
danger of serious personal injury.
4.6.4 Enforcement notices

It is important to be clear about the difference between the two
types of enforcement notice that can be issued:
• improvement notices
• prohibition notices
There is a popular misconception that these are issued in a
hierarchical way, with an improvement notice being issued first,
followed by a prohibition notice if the improvement notice is not
complied with ...
... this is totally incorrect.
Each notice has a strict criteria related to its issue which the
inspector must conform to; the reason for the issue of the notice
being completed on the notice itself. The following are the key
points to remember:
Improvement notices (section 21 HASAWA)
• contravention of a relevant statutory provision at the time of
issue
• contravention in the past which is likely to be continued or
repeated
• an appeal against the issue of the notice must be made to
an industrial tribunal within 21 days of the issue of the
notice
• the notice is suspended while the appeal is being heard
Prohibition notices (section 22 HASAWA)
• a risk of serious personal injury / illness
• an appeal against the issue of the notice must be made to
an industrial tribunal within 21 days of the issue of the
notice
• the notice stays in effect during the appeal
4.6.5 Summary offences, indictment

Section 33 of the Act outlines the range of offences which can be
tried either summarily or by indictment (these were defined in
section 4.5.1). The main points can be briefly outlined as follows:
Summary offences
• contravening an investigation
• contravening a requirement imposed by an inspector
• preventing someone answering an inspector’s questions
• intentionally obstructing an inspector
• falsely pretending to be an inspector
Either way offences (summary or indictment)
• failing to carry out sections 2–9 of the Act
• contravening any regulation made under the Act
• contravening an enforcement notice
• making false statements or a false entry in a document etc
• failing to comply with a court order
• forging a document
• offences related to licences, explosives and information to
be provided to inspectors etc
With regard to the punishment related to the above offences, it is
another popular misconception that prison sentences are avail-
able for all breaches of health and safety legislation. This is not
the case - prison sentences are only available for a very limited
range of offences, usually associated with non-observance of
notices or court orders. A brief outline of the punishment associ-
ated with health and safety offences is contained below:
Summary offences
• breaches of sections 2–6 of the Act: £20 000 per offence
• all other offences: £5000 per offence
• six month maximum prison sentence for a small range of
offences (mainly non-compliance with notices)
Indictment
• unlimited fines
• a maximum of two years imprisonment for a limited range
of offences; (non-compliance with notices and licences etc)
4.6.6 Employment tribunals

Employment (formerly ‘industrial’) tribunals operate a form of
administrative justice and are therefore relatively inexpensive and
informal when compared to the courts. They were first estab-
lished in 1964 to deal with unfair dismissal, redundancy payments
and various other matters. Tribunals have also an important role
to play in settling matters of discrimination.
With regard to health and safety issues, tribunals deal mainly with
cases in which:
• employers refuse to recognise safety representatives ap-
pointed by a trade union under The Safety Representative and
Safety Committee Regulations 1977 (more on these later)
• safety representative(s) are prevented from carrying out their
functions, or suffer detriment or unfair dismissal for carrying
out those functions
• safety representative(s) are refused time off with pay for
training or for carrying out their functions
• employees suffer detriment after stopping work where they
had reason to believe there was serious or imminent danger*
• employers appeal against an improvement or prohibition
notice served upon them by an enforcement officer†
* This relates to the duty placed upon employees, under The Manage-
ment of Health and Safety at Work Regulations 1999, to report situations
that they have reason to believe represent serious or imminent danger to
either the employee or to the competent person appointed by the
employer. The right to a tribunal hearing where the employee suffers
detriment due to stopping work in such a situation is contained in The
Trade Union Reform and Employment Rights Act 1993.
†
The employer can appeal to the relevant enforcement office against an
improvement notice being served. When either an improvement or
prohibition notice has been served, the employer can appeal within 21
days to a tribunal against such a notice. The notice is suspended, in the
case of an improvement notice, while the tribunal decides upon the
issues involved. However, a prohibition notice stays in force.
A tribunal consists of a legally qualified chairperson and two

adjudicators (often termed wing persons) who are drawn from a
panel of employers’ representatives and employees’ representa-
tives. Although not strictly legally qualified, these adjudicators
have a wealth of sound practical experience upon which to draw.
Appeals from tribunals can either by heard at employment ap-
peals tribunals or, on matters of law, by the Court of Appeal (thus
tying them back into the court system).
The following brief outline of tribunal procedure may prove
helpful:
• An application is made which sets out the claim and indicates
the terms of employment. The employer (where the claim is
from an employee) is notified and asked to indicate whether
(s)he admits the claim or intends to resist. Where (s)he resists
(s)he must, at this stage, indicate the grounds.
• A date is set for the hearing. The tribunal can order the
production of documents, the attendance of witnesses and
the giving of evidence.
• No strict rules apply, as in a court, although both parties make
opening statements, call witnesses, cross-examine and give
evidence.
• Often a pre-hearing or a preliminary hearing takes place with
the intention of discovering if enough evidence exists for a full-
hearing.
• All tribunals are governed by two unwritten common law rules:
» the rule against bias: no judge can rule in his own cause
» audi alteram partem: you must always hear the other side
• Appeals can be made on a point of law rather than based on
facts. Decisions are not considered as strict precedents, but
are valued for their reasoning and guidance.
• Appeals concerning the issue of notices go to the Queen’s
Bench Divisional Court. Other appeals go to the employment
appeals tribunal.
4.7 Civil liabilities

4.7.1 Tort
Civil actions for damages resulting from occupational injury or ill-
health are often taken under the following two torts (although
some cases are taken under breach of contract):
• tort of negligence
• tort of breach of statutory duty
It is important to be clear as to the differences between these two
torts and of the distinct ‘tests’ that have to be satisfied in order to
be successful with regard to either of them.
To be successful in an action under the tort of negligence, the
following three points have to be established:
• that the defendant owed the plaintiff a duty of care
• that the duty of care was breached through negligence
• that loss resulted from the breach of the duty of care
Thus the plaintiff has to establish that the defendant owes a duty
of care, that this duty of care was breached through negligence*
and that, as a result, the plaintiff suffered losses which were
causally connected with the breach and not too remote from it.
On the other hand, to be successful in an action under the tort of
breach of statutory duty, the following points all have to be estab-
lished:
• that the statutory duty is applicable
• that the statutory duty applies to the class of person making
the claim
• that the statutory duty applies to the type of injury suffered
* Negligence in this context merely means failing to act in a way a

reasonable person would have acted under the circumstances, or acting
in a way a reasonable person would not have acted in under the circum-
stances. In other words, it involves both acts and omissions.
• that the statutory duty was breached and

• that loss resulted from the breach of the statutory duty
The first tests concern whether the statutes apply, in general, to
such cases and, more specifically, to the person and injuries
suffered in the particular case ...
... picking up two points from this last sentence:
Firstly, regarding the application of the statutes ... sections 2 to
8 of The Health and Safety at Work Act 1974 are ruled out of
tort of breach of statutory duty claims by section 47 of the
same Act. We are tempted to make a similar mention of
regulation 22 of MHSWR 99 and also of the ability of young
persons or pregnant/nursing mothers to bring breach of
statutory claims if injury results from the risk assessment
failing to take into account their age or condition. Neverthe-
less, tempted though we are, we will say no more about these
matters because they are really moving beyond what you
need for the NEBOSH Certificate.
Secondly, by way of an example concerning injuries
sufferered: the statute may impose an obligation on an em-
ployer towards an employee, whereas the injured person is a
visitor. The Electricity at Work Regulations 1989 introduce
requirements to prevent only a limited range of injuries,
namely those resulting from shock, burn, fire and explosion.
These Regulations could not be introduced in a tort of breach
of statutory duty claim relating to another type of injury.
Where the statutes are held to apply, then it is enough to show
that they have been breached and that loss resulted from the
breach. Negligence does not have to be established. Often the
breach is established by the successful prosecution of the de-
fendant by the enforcement authority in the criminal law courts.
Where the statute used is applicable in the civil courts, then the
facts established in the criminal courts can be introduced into the
civil proceedings.
Civil actions take a long time (often 5–7 years) to reach the courts
(most cases are in fact settled out-of-court during this waiting
period), although under The Limitation Act 1980, action must be
initiated within three years from either the date on which the
cause of action occurred, or the date of knowledge of the person
injured.
Solicitors acting for plaintiffs often initiate what is termed ‘a
double-barrelled action’ against defendants, that is to say they
inform the defendant that the plaintiff is taking action against them
under both a tort of negligence and a tort of breach of statutory
duty. They will then watch how matters develop ...
... if, for example, the defendant is successfully prosecuted by the
Health and Safety Executive or the local authority’s environmental
health department under an applicable statute, then they will
probably drop the tort of negligence action and proceed with the
tort of breach of statutory duty action.
If, however, the employer is not prosecuted under an applicable
statute, then they will probably drop the tort of breach of statutory
duty action and proceed with the tort of negligence action.
If you go further and eventually study for the NEBOSH Diploma,
then you will find that the points covered in this study material will
be expanded upon.
4.7.2 Vicarious liability

Vicarious liability merely means that one party takes on the
liability of another party with regard to loss that has occurred. You
might think that this is an unusual situation, but, in fact, employers
usually take on the liability for losses caused by their employees
even when those employees are acting in a negligent way*.
Similarly, insurance companies usually take on the liability of
employers in such situations. It should always be remembered
that although civil liability can be passed on in this way, criminal
liability, in the form of guilt, stays with the guilty party. Therefore,
vicarious liability has become the principal ground for actions by
employees against employers, since injury-causing accidents
rarely arise through the personal negligence of employers.
However, where the employee is taking an action against the
employer for loss caused primarily by that employee’s own
negligent actions, then any damages awarded may be greatly
reduced through the mechanism of contributory negligence.
4.7.3 Contributory negligence

The Law Reform (Contributory Negligence) Act 1945 provides
that where injury is caused by two or more persons, the court
must decide how much each person is to blame. The payment of
damages is then shared out in accordance with this appointment.
One of the persons involved may be held to be the employee who
is taking an action against his or her employee following an
accident, or case of ill-health, at work.
* The key question here is: ‘even though the employee was acting
negligently, was what he was doing still part of the course of his employ-
ment?’. In the case of Rose v Plenty (1976) a boy was injured on a milk
float, but the dairy company was not held liable because they had
expressly forbidden the driver, their employee, to ‘employ’ children to
deliver milk and collect empties. On the other hand, in Century Insur-
ance Co Ltd v Northern Ireland Road Transport Board (1942), an em-
ployee employed to deliver petrol in tankers to garages decided to have
a smoke on the forecourt while the petrol was being transferred. He
threw a lighted match which landed near the underground tank and
caused an explosion. The employer was held to be vicariously liable for
the loss suffered as the employee was doing what he was employed to
do, deliver petrol, even though it was done in a grossly negligent way.
The employee may be apportioned some blame if, for example,

(s)he disobeyed a safety notice or did not use some personal
protective equipment which had been supplied.
Contributory negligence is not strictly a defence against a civil
action, for if a defence succeeds the claim is lost completely.
Rather, it is utilised after the defences have failed and the defend-
ant is held liable, with the intention of shifting some, but not all, of
the liability onto the plaintiff in order to reduce the level of dam-
ages awarded. Hence it is often regarded as a ‘partial defence’.
In defending a claim much will be made of whether the ‘tests’ for a
tort of negligence or a tort of breach of statutory duty have been
met, ‘was the injury foreseeable?’ and ‘did the defendant do all
that a reasonable person would have done to prevent such a
foreseeable injury?’ being key questions in relation to the tort of
negligence. On the other hand, ‘was the statute applicable?’ and
‘was the statute breached?’ would be key questions in relation to
the tort of breach of statutory duty.
A final defence that can be utilised involves the assumption of risk
of injury (volenti non fit injuria). Roughly translated this means
that those who volunteer to place themselves at risk cannot then
claim compensation if they are injured. However, the courts are
now extremely reluctant* to accept this defence and, even where
they do accept it, they require that the person held to have volun-
teered did so, without coercion, in respect of a specific risk of
which they had full knowledge.
* In the case of Morris v Murray (1990) the plaintiff was held not to be
entitled to damages on the grounds of having ‘knowingly and willingly’
embarked on a flight with a drunken pilot. However, the defence is rarely
successful when used by employers in respect of injured employees, as
the courts often take the view that employees go to work to earn a living
and not to volunteer to run risks. The leading case in this respect is
Smith v Baker and Sons (1891), where a workman was injured by a rock
falling from the jib of a crane. The employer’s plea of volenti non fit
injuria failed: it was held that employees were entitled to protection at
work and did not have to ‘look out for themselves’. Additionally, the case
of Wheeler v New Merton Board Mills Ltd (1933) established that volenti,
unlike contributory negligence, cannot be pleaded as a defence by an
employer who is in breach of a statutory duty.
4.8 Direct and indirect costs of accidents and ill-health

The economic bottom line is that accidents and ill-health cost an
organisation money in terms of financial losses resulting from a
failure to manage risk.
Hence, organisations need to know the cost of accidents and ill-
health within their businesses. There are two main accident
costs: insured/direct costs, and uninsured/indirect costs.
The insured/direct costs will be covered by the employer’s
liability insurance premium, this, together with the employer’s
public liability insurance premium, will be the organisation’s
insured cost. The insurer, upon receipt of the premium, will
manage and either settle or contest any claims for damages
made under the policies as a result of injury, accident or ill-
health. The insurer will pay any compensation and court costs
on behalf of the organisation.
The uninsured/indirect/hidden costs of accidents will not be
covered by insurance and, hence, will be over and above any
insured costs. Uninsured costs include:
• safety administration/accident investigation
• medical treatment/first aid
• lost time of injured person
• lost time of other employees
• replacement labour
• payments made to injured person
• loss of production/business interruption
• repair of damaged plant/equipment
• replacement of damaged materials/product
Thus, as we said earlier, the economic reasons for the
managment of risk reinforce the moral argument for less pain and
suffering and also the legal argument for fewer fines and enforce-
ment notices.
This is certainly not the last we shall have to say in this study
material about the costs of accidents, but it will suffice for now.
5 The legal framework for regulating health

and safety
Here is the next part of syllabus unit 1:
• the role of the European Union ...
• Health and Safety at Work etc Act 1974 ...
• absolute and qualified duties: ‘practicable’, ‘reasonably practicable’
• the roles and functions of external agencies: HSC ...
• the powers of inspectors under HASAWA
Looking through the syllabus you will see that the five NEBOSH
bullet-points extend some of the legal principles which we have
already introduced.
5.1 The role of the European Union

European Directives that are adopted by the Council of Ministers
need to be implemented by Member States. With regard to
European Health and Safety Directives, the HSC have three
options to consider:
• no new Regulations required because existing UK legislation
already covers the essential aims of the Directive
• modifications needed to existing legislation which either:
» covers some but not all of the essential aims
» covers all of the essential aims but not in sufficient depth
• new Regulations required to cover the essential aims
An interesting demonstration of UK legislation evolving to meet
the needs of European Directives is to be found in syllabus unit 4
concerning The Safety Representatives and Safety Committee
Regulations 1977 ... These important Regulations were, inten-
tionally, the first Regulations to be created under HASAWA 1974.
In the 1980s and 1990s, the changing nature of the workforce, in
particular the decreasing level of trade union membership, led to
the need to introduce new legislation to cover workers who were

not members of trade unions, hence The Health and Safety
(Consultation with Employees) Regulations 1996.
You may find the following figure helpful in summarising how
European Directives on health and safety lead to changes in
British legislation.
European Union United Kingdom
technical
Health and Safety
working parties
Commission
European consultative various

Commission process relevant parties
propose
European Sec of State for

Parliament Environment
scrutinise HASAWA
Council of laid in
Ministers adopt Parliament
Regulations made under
the Act
Figure 4 How EU Directives become UK Regulations under HASAWA
5.2 The Health and Safety at Work etc Act 1974

The Health and Safety at Work etc Act 1974 (HASAWA or HSW
Act - both abbreviations are in common use) imposes general
duties on everybody connected with work.
In the text which follows, in discussing the requirements of
HASAWA (and MHSWR) on employers, employees and safety
committees, we have at times paraphrased the legislation dis-
cussed in order to make it clearer.
5.2.1 General HASAWA duties

The general duties contained in HASAWA are as follows:
Section 1 states the general purposes of the Act:
• maintain or improve standards of health and safety at work
• protect other people against risks arising from work activities
• control the storage and use of dangerous substances
• to control certain emissions into the air
Section 2 is the beating heart of HASAWA. Earlier, in section 4.4
of our book ... a safe place of work, safe plant, safe systems ...)
we introduced you to the HASAWA section 2(1) and 2(2) duties.
For the sake of completion, you might like to make a few revision
notes in the space below:
HASAWA section 2(1) and 2(2) duties on employers
Another related requirement of section 2 of HASAWA concerns

the safety policy of the organisation which forms the subject of
unit 2 of the syllabus. Briefly for now ... section 2(3) of HASAWA
requires every employer to:
• prepare (and keep up to date) a written statement of his
general policy with respect to:
» the health and safety at work of his employees; and
» the organisation and arrangements in force for the time
being for carrying out that policy
• bring the statement and any revision of it to the notice of all his
employees
The health and safety policy should contain:
• general statement of intent, dated and signed by the owner or
chief executive
• organisation, details of the who is responsible for doing what
with regard to health and safety
• arrangements for implementing the policy; in practice these
are often divided into:
» general arrangements, for example: fire and emergency
procedures
» specific arrangements: how to use certain pieces of equip-
ment and so on
Section 3 places duties on employers and the self-employed to:
• ensure that their activities do not endanger anybody (with the
self-employed, ‘anybody’ includes themselves)
• to provide information, in certain circumstances, to the public
about any potential hazards
Section 4 places a duty on those in control of premises, which are
non-domestic and used as a place of work, to ensure they do not
endanger those who work within them. This extends to plant,
substances and means of access and egress as well as to the
premises themselves.
Section 6 places duties on manufacturers, suppliers, designers,

importers etc in relation to articles and substances used at work.
Basically, they have to research and test them and supply infor-
mation to users.
Section 7 places duties upon employees, as we mentioned in
earlier in section 4.4 of our book; again make brief revision notes
in the space below:
HASAWA section 7 duties on employees
Section 8 places a duty on everyone not to interfere with or

misuse (whether intentionally or recklessly) anything provided in
the interests of health, safety and welfare.
Section 9 provides that an employer may not charge his employ-
ees for anything done or equipment provided for health and safety
purposes under a relevant statutory provision.
5.2.2 Acts and Regulations

Written law is primarily made by Parliament and takes the form of:
• Acts of Parliament (Statutes)
• Regulations (Statutory Instruments)
Where there is a conflict, statutory law overrides common law. In
fact, Statutes are sometimes produced to overcome difficulties
that have arisen in common law. The Occupiers’ Liability Act
1957, for example, was partly introduced to overcome problems
in common law with regard to various types of lawful visitor
towards whom the occupier owed a different duty of care.
The main differences between Acts and Regulations concern the
way in which they are introduced and made.
Acts
Acts of Parliament result from the following procedure:
• a Bill can be introduced in either of the Houses of Parliament
with the intention of creating a new law on a particular issue
• the Bill receives a formal First Reading
• the general principles involved are debated and a vote may be
held on the proposal to give the Bill a Second Reading
• if the Bill has received a Second Reading, it is sent to the
Committee Stage where it is considered in detail by either the
full House or a Select Committee and amendments may be
made
• the Bill is presented to a Report Stage of the full House, when
the amendments are considered
• the Bill receives its Third Reading and a vote is taken
• if the House has voted in its favour, the Bill is sent to the other
House, where a similar procedure is adopted
• when both Houses have passed the Bill, it is presented to the
Sovereign for the Royal Assent; this, by convention, is never
refused
Regulations
The above process obviously takes a considerable amount of
time. Therefore, Acts often contain enabling clauses within them
that delegate authority to Government Ministers to introduce
Regulations within the scope of the main Act.
From the perspective of health and safety, The Health and Safety
at Work Act 1974 is an example of such an enabling Act. Section
15* of HASAWA grants powers to the Secretary of State for the
Environment to introduce Regulations under the Act which relate
* Acts contain numbered sections whereas Regulations contain num-

bered regulations. For example, section 2(2)(a) of the HSW Act requires,
among other things, the provision and maintenance of a safe system of
work, whereas regulation 3 of The Management of Health and Safety at
Work Regulations 1999 requires risk assessments to be undertaken. It is
important to remember this distinction: examiners don’t like to read about
‘Section 5 of the Workplace Regulations’ in examination scripts!
to health, safety and welfare at work. Legislation introduced in

this way is sometimes termed subordinate, delegated or second-
ary.
Although the power to introduce Regulations is strictly given to
the Secretary of State, in practice health and safety Regulations
are usually proposed by the Health and Safety Commission
(HSC) and involve a consultation process in which Consultative
Documents (ConDocs), containing the proposals, are circulated to
the various parties involved.
The procedure for making Regulations can therefore be outlined
as:
• a proposal is made by the HSC, often following the introduc-
tion of a European Directive
• a consultative process takes place in which ConDocs are sent
to relevant parties and comments on the proposals received
• Regulations are drawn up by the Secretary of State under the
enabling powers contained in section 15 of HASAWA
• the Regulations are laid in Parliament for a period of 40 days
and become law through a process of negative resolution,
which means that no-one votes against them
5.2.3 Approved codes of practice

Whereas Acts and Regulations are law, approved codes of
practice (ACOPs) contain examples of good practice that have
been approved by the HSC under the powers contained in section
16 of HASAWA.
ACOPs are usually published to accompany Regulations and
contain the technical and practical detail that is required to be
followed in order to achieve compliance with the Regulation. For
example:
• regulation 3 of The Management of Health and Safety at Work
Regulations 1999 (MHSWR) requires that a ‘suitable and
sufficient’ risk assessment be undertaken
• the accompanying ACOP stipulates the factors that need to be
considered by a risk assessment if it is to be considered as
being ‘suitable and sufficient’
As ACOPs are not law, you cannot be prosecuted for being in

breach of the requirements of an ACOP. However, where you are
being prosecuted for being in breach of a Regulation, or a section
of HASAWA, then the relevant ACOP can be used in evidence.
The effect of this would be to shift the onus of proof onto the
defendant. In the above example, it would not be for the prosecu-
tion to prove that your risk assessment was unsatisfactory be-
cause it did not comply with the ACOP, rather it would be for you
to prove that you complied with the Regulations in some other
way which was at least as effective as the way contained in the
ACOP.
5.2.4 Guidance notes

Guidance notes (GNs) are usually produced by the Health and
Safety Executive and contain best technical and practical advice
on specific health and safety issues. They generally aim to:
• interpret Acts and Regulations
• help people to achieve compliance with legal requirements
• offer sound technical advice
In addition to GNs, other material containing good practical and
technical advice are British and European Standards and codes
of practice (often produced by organisations, trade federations,
etc). Again, these contain no strict legal compulsion.
5.3 Absolute and qualified duties
5.3.1 Absolute duties

You will not find a duty in HASAWA, or in its associated legisla-
tion, phrased such that it is the absolute duty of X to do Y. What
you will find, however, are certain duties which are not qualified
by phrases such as so far as is practicable and so far as is
reasonably practicable. Such duties are considered absolute and
must be carried out.
The duty itself is usually expressed by the term shall. For exam-
ple, regulation 3 of The Management of Health and Safety at
Work Regulations 1999 requires that:
Every employer shall make a suitable and sufficient assessment of:

a) the risks to the health and safety of his employees to which
they are exposed whilst they are at work; and
b) the risks to the health and safety of persons not in his
employment arising out of or in connection with the conduct
by him of his undertaking, for the purpose of identifying the
measures he needs to take to comply with the requirements
and prohibitions imposed upon him by or under the relevant
statutory provisions.
The Management of Health and Safety at Work Regulations 1999
This is an example of an absolute duty. Other examples include:

• section 2(3) of HASAWA, relating to the provision of health
and safety policies
• sections 2(4), 2(6) and 2(7) of the HASAWA*, relating to:
» recognition and consultation with safety representatives
» establishment of safety committees
5.3.2 Qualified duties

If absolute duties (often known as strict liability) lie at the top of
the hierarchy of duties, then qualified duties (where the word shall
is qualified by a phrase) follow a similar hierarchical structure.
Although there are numerous examples of qualified duties, the
two that candidates are required to know and understand for
NEBOSH examination purposes are:
• so far as is practicable
• so far as is reasonably practicable
* This is another instance where the onus of proof is shifted onto the
accused. You should remember that a similar situation occurs whenever
an ACOP is introduced in evidence.
These are discussed separately below. Together with absolute

duties they form the following hierarchy:
1 It shall be the duty ... (absolute)

2 It shall be the duty so far as is practicable ... (qualified)
3 It shall be the duty so far as is reasonably practicable ... (qualified)
5.3.3 So far as is practicable

Where a legal requirement introduces the phrase so far as is
practicable, then the duty that it qualifies needs to be complied
with in the light of current knowledge and invention. In other
words, we need to ask whether it is physically possible to do it at
the time.
This judgement must be regardless of:
• the time it would take to perform the duty
• the trouble involved in performing the duty
• the cost of performing the duty
Also, the judgement must be kept under review. What may be
physically impossible to perform today may, with developments in
technology, become physically possible to perform tomorrow.
An important example of a duty qualified by the phrase so far as
is practicable is regulation 11 of The Provision and Use of Work
Equipment Regulations 1998 (more on this later), which intro-
duces a hierarchy of measures to prevent access to dangerous
parts of machines, each step in the hierarchy being qualified.
5.3.4 So far as is reasonably practicable

This qualification requires a balance to be made of the total cost
of performing the duty, on the one hand, and the risks to be
reduced by performing the duty, on the other hand. This calcula-
tion has to be made before an accident occurs.
Where the risks are very ... so far as is reasonably practicable

high, then the duty must be
performed irrespective of
the cost. However, where
risk:
the risks are significantly
reduced and, due to the cost: likelihood and
law of diminishing returns, severity of injury
time, trouble,
the cost of reducing the
inconvenience,
risks still further are dispro-
financial
portionately high, then the
duty is not deemed to be ‘reasonably practicable’ to perform.
In considering the costs involved, no allowance can be made for
the size, nature and profitability of the business concerned. It is
the risk which determines whether or not the cost involved is
justified.
All of these points were summed-up nicely in a leading case-law
decision in which the judge stated that:
Reasonably practicable is a narrower term than physically possible

and implies that a computation must be made in which the quantum
of risk is placed in one scale and the sacrifice, whether in money,
time or trouble involved in the measures necessary to avert the risk
is placed in the other; and that, if it is shown that there is a gross
disproportion between them, the risk being insignificant in relation
to the sacrifice, the person upon whom the duty is laid discharges
the burden of proving that compliance was not reasonably practica-
ble. This computation should be made at a point of time before the
incident complained of.
Edwards v National Coal Board (1949)
Most, but not all, of the HASAWA is qualified by the term so far as
is reasonably practicable.
5.4 The roles and functions of external agencies, the powers of

inspectors
The syllabus says:
• the roles and functions of external agencies: Health and Safety Commis-
sion, Health and Safety Executive, local authorities, fire authorities,
Environment Agency / Scottish Environmental Protection Agency,
insurance companies
• the powers of inspectors under HASAWA
Looking back through this book you will see that we have already
covered much that is required by NEBOSH under these two bullet
points. In section 4.6 (in particular in sections 4.6.2–4.6.4) we
dealt with the role and structure of the HSC and the HSE and with
the powers of inspectors, the issuing of enforcement notices and
so on. As we stated, in occupational health and safety matters,
the enforcement authority is usually the Health and Safety Execu-
tive or the local authority acting on its behalf.
As revision, make a few notes in the space below:
the roles and functions of ... Health and Safety Commission, Health
and Safety Executive, local authorities
the powers of inspectors under HASAWA
To complete the requirements of this part of the syllabus we thus

need to say a few words on fire authorities, Environment Agency,
Scottish Environmental Protection Agency, insurance companies.
5.4.1 Fire authorities, fire certificates

Much more on this in syllabus unit 11 Fire hazards and control,
but for now ...
... a fire certificate may be required for buildings where people
work or are employed (the requirements for a building to ‘qualify’
for a fire certificate and the exemptions are rather complex and
introduced in unit 11). A fire certificate will be issued (or refused)
by the local fire authority or, in the case of a particularly hazard-
ous installation such as a refinery (‘special premises’), the certifi-
cate will be issued by the HSE. The local fire authority will prob-
ably be the county or town fire brigade.
The Fire Precautions Act 1971 is enforced by the fire authorities
and this Act gives fire authority inspectors powers similar to those
held by inspectors (HSE and otherwise) under The Health and
Safety at Work etc Act 1974. In particular, this power includes the
right to issue improvement and prohibition notices.
5.4.2 The Scottish Environment Protection Agency SEPA,

Environment Agency
SEPA is the public body responsible for environmental protection
in Scotland. It was established under The Environment Act 1995
and, in their own words, SEPA’s main aim is:
To provide an efficient and integrated environmental protection
system for Scotland which will both improve the environment and
contribute to the Government's goal of sustainable development.
SEPA regulates potential pollution of natural waters and the air and
the storage, transportation and disposal of controlled waste and the
keeping of radioactive materials. In fulfilment of its broader duty to
bring about environmental improvement in Scotland, SEPA provides
extensive guidance and advice to regulated organisations and works
in partnership with others to deliver environmental goals through
non-statutory means.
The role of SEPA
The Environment Agency is (also in its own words):
... the leading public body for protecting and improving the environ-
ment in England and Wales. It’s our job to make sure that air, land
and water are looked after by everyone in today’s society, so that
tomorrow’s generations inherit a cleaner, healthier world.
Chairman, Environment Agency
The Agency is divided into a number of offices and services

across the country:
• eight Regional Offices: North East, Wales, Thames ...
• area offices at 26 locations - this is the level which is where
most of the EA staff are employed
• eight national centres with specific remits, for example the
National Flood Warning Centre
The best possible way to get a feel for the work of SEPA and the
EA is to look at their excellent web-sites:
www.sepa.org.uk
www.environment-agency.gov.uk
in particular, make use of links such as:
WHAT WE DO PRESS RELEASES

PUBLICATIONS POSITION STATEMENTS
to obtain a good feel for the activities of SEPA and EA.
The Environment Agency is a QUANGO: quasi-autonomous non-

government organisation. This means that it is financed by the
Government but has been given a level of independence from
DEFRA, the Government Department which acts as the EA’s
sponsor (DEFRA: Department for Environment, Food and Rural
Affairs). The EA was created in 1996 and bought together vari-
ous previously separate organisations: NRA National Rivers
Authority, HMIP Her Majesty’s Inspectorate of Pollution, and the
Waste Authorities.
Summing up the role of SEPA / EA you will perhaps see parallels

with The Health and Safety at Work Act 1974; HASAWA leading
to the setting up of the Health and Safety Commission and the
Health and Safety Executive ... The Environment Act 1995 lead-
ing to the creation of The Scottish Environment Protection Agency
and the Environment Agency.
5.4.3 Insurance companies

Ill-health / injury / death compensation claims have been men-
tioned earlier, as have insurance payouts for direct accident
costs. A noticeable feature of the changing health and safety
world of the last 20 years has been the increasing involvement of
insurance companies - a very positive involvement:
• running training courses
• providing advice and risk management consultancy to compa-
nies
• conducting what are known as ‘statutory inspections’ of equip-
ment such as steam boilers and power presses - equipment
that needs more specialised checking than may be possible by
in-house staff
This is another subject to which - implicitly if not explicitly - we will
return in later syllabus units, particularly units 2–5.
Drawing syllabus unit 1 to a close ...

Although the term law is used in many different senses, each of
these senses contains the common element of the law as being a
general rule of conduct. However, in a strictly legal sense, law
has the far narrower meaning of being the body of principles
recognised and applied by the state in the administration of
justice. In practice, the law consists of the rules recognised and
acted on by the courts of justice, its aim being the attainment of
justice in society.
Naturally, your studies have been primarily concerned with the

sub-section of the law which relates to occupational health and
safety. However, this sub-section of the law cannot be viewed in
isolation from the general framework of law which contains it and
thus we have also discussed some of the key aspects of general
law.
Having studied unit 1 of the syllabus, you should be able to
describe:
• the differences between criminal and civil law
• the meaning of the terms statute law, common law, tort,
negligence and vicarious liability
• the main differences between Acts, Regulations, approved
codes of practice and guidance notes and their relative legal
standing
• the powers of the courts and tribunals that deal with breaches
of health and safety legislation
• the requirements of sections 2 to 9 of The Health and Safety
at Work etc Act 1974
• the role of the health and safety enforcement authorities and
the powers of inspectors
• the main requirements of certain specific pieces of health and
safety legislation (you will obviously add to these as you move
through the syllabus looking at specific health and safety
subject areas: electricity, manual handling, labelling,
signposting, construction ...)
The last syllabus requirement of unit 1 is:
A framework for health and safety management: setting policy; organising;

planning and implementing; monitoring and review; auditing
These words are a perfect lead-in to the syllabus units 2–5. So,
time to make a flourish on the trumpets and to re-introduce a
piece of legislation with which you are already familiar and which
now moves to centre stage; ladies and gentlemen, we present to
you The Management of Health and Safety at Work Regulations
1999.

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PAUL RANDALL AND ASSOCIATES

HEALTH AND SAFETY TRAINING

Health and safety foundations

NEBOSH Certificate unit 1

... continued overleaf ...

5 The legal framework for regulating health and safety ..................... 42

The multi-disciplinary nature of health and safety; the obstacles to good

The legal framework for regulating health and safety ...

A framework for health and safety management: setting policy; ...

1.1 The NEBOSH Certificate and its coverage of the law

However, you still of course have the choice of initially working

2 The multi-disciplinary nature of health and

3 Basic health, safety and legal terminology

3.1 Health, safety, welfare and environmental protection

Later, health concerns extended to long term (chronic) effects:

* The Management of Health and Safety at Work Regulations 1999

So, that’s safety, health and welfare, now for environmental

3.2 Accidents, dangerous occurrences, near-misses and work-

Earlier versions of the NEBOSH Certificate did not need to

3.3 Hazard, risk and danger

Q How would you distinguish between hazard and risk?

... as applied to health and safety:

3.4 An introduction to the law

It is not the wrongful act which distinguishes between civil and

Legal expert Glanville Williams summarised the position in the

If the wrongful act is capable of being followed by what are called

Criminal and civil proceedings are easily distinguishable: the

Learning the Law, Glanville Williams

In occupational health and safety matters, the enforcement

In addition to their different usages, civil and criminal law have

criminal law civil law

3.5 Establishing guilt in civil and criminal cases

* ie compensation for loss suffered. This means, in theory, being no

You my find the figure below helpful as a reminder of some of the

The body of law

used by: individuals § the State

to achieve: damages punishment

through: Civil Courts Criminal Courts

Figure 1 The law and the courts

That brings to an end section 3 of our book which we entitled

4 Moral, legal and financial arguments

4.2 The size of the health and safety problem

Q What are your thoughts on what NEBOSH has to say?

... we have to admit, here we have a bone to pick with NEBOSH

4.3 Employer’s duty of care, rights of workers

In the Wilsons case†, the employers’ duties towards their employ-

Q Think of examples of employees who could be at a greater

A Employees at greater risk include:

Within the course of employment

This was established in the case of Lister v Romford Ice and

• The employer’s common and statutory duties to provide a safe place of

... which in practice means that we must turn to section 2(1) of

* The Association of British Insurers made a statement following the

Whilst looking at employers duties, it seems sensible at this point

4.5 Introduction to the court system

Figure 2 Main courts European Court

claims over claims up to summary conviction

4.5.1 Criminal courts