Incidents and accidents - part two

Podcasts by Brodies: Incidents and accidents - part two
00:00:06 David Lee, Host

Hello and welcome to Podcasts by Brodies. My name is David Lee, and in this podcast, part of the Health and Safety Series, we discuss the aftermath of major incidents and what happens from a legal perspective. We're covering this topic in two parts and have already heard from Paul Marshall and Ramsay Hall about what happens when a call comes in about an incident and how Brodies and its clients respond.

We went all the way to the point where the incident has lead to a court case and what happens next. In part two, I'm joined by two experts to help us explain how the legal process works and what clients who find themselves involved in the Health and Safety court case need to know and need to do.

This is a significant area of the law that seeks to protect individuals and organisations when the worst happens and to guide us through. I'm joined by two of Brodies senior solicitor advocates, Tony Jones KC and Clare Bone. Welcome to you both.

Both Clare and Tony regularly represent clients in the event of major incidents from fatalities in the workplace and fires through to serious accidents and structural failures. To come to you first of all, Clare, you head up Brodies Health and Safety practice. So a simple, or possibly not so simple, question, what is health and safety and why is it important?

00:01:30 Clare Bone, Partner & Solicitor Advocate

Health and Safety law is probably best explained as this, there is a legal duty on all businesses, all organisations, regardless of their size, regardless of what sector they're in, to ensure the health, safety and welfare at work of all their employees. Now, what that means is providing safe places of work, safe systems, providing suitable and sufficient equipment to allow them to do their work safely and providing them with adequate training and supervision, knowing that they're going to be doing the job safely.

The duty extends to those not employed, but who may be affected by the way an organisation runs its business too. So that would be members of the public, any subcontractors on a construction site, any service users. It's really important as it places the duty on all organisations to create a safe and secure working environment and any organisation that fails in that duty will find itself exposed to possible criminal sanctions, there could be a criminal prosecution arising. Now that could give rise to hefty fines, custodial sentences for individuals and of course significant damage to reputation too.

00:02:40 David Lee, Host

Thanks very much, Clare, for setting the scene there. Can you maybe give us some examples of scenarios, maybe some of the common ones in health and safety, that you deal with?

00:02:52 Clare Bone, Partner & Solicitor Advocate

Absolutely. In the 20 years that I've been specialising in health and safety, I think I've probably seen them all. We see regularly falls from heights, workplace, transport accidents where individuals are knocked down by a forklift truck on site, we also see large scale fires and explosions leading to multiple deaths. Each accident is so different, but they need to respond swiftly and provide that expert support, remains the same in every single case. Very often as well, although the accidents can all be different, it's the same issues in the background that give rise to that accident, that could be poor management of health and safety, lack of instruction to staff, poor supervision, it really underlines the importance of having a good health and safety management system at the core of your business.

00:03:42 David Lee, Host

Thanks very much. We talked last time, in part one, a bit about The Health and Safety Executive. If it is the HSE that comes in and leads an investigation rather than the police, how does that make a difference to the investigation process and what do you tell your clients about that?

00:04:00 Clare Bone, Partner & Solicitor Advocate

So both proceed with much the same way, as you would expect, whether it's the HSE or the police, they're looking to speak to witnesses, they're looking to collate evidence and they're looking to identify whether there has been a health and safety crime committed that requires to be reported to the procurator fiscal. I think what surprises clients the most is the fact that the HSE, in some respects, have greater powers than the police. Now, they can't arrest or detain an individual but when it comes to information gathering, their powers are much more extensive. So, what an inspector can do is laid out in section 20 of The Health and Safety at Work Act, that's what gives them their powers. In essence, unlike the police, they don't need to seek a warrant from the court to enter premises or to seize documents or to take any equipment away. So if the HSE turn up at a client's office, show their warrant card and seek access to recover these things, the client should let them in otherwise they are guilty of committing a crime of obstruction. Their powers are also extensive when it comes to statement taking too when they're speaking with witnesses, if the police are to come and speak to you as a witness, all they can request you do is provide your name and address, you're not required to cooperate beyond that. If, however, a statement has been taken by the HSE using their section 20 powers, that is to provide a compelled statement, the witness is required to answer all questions reasonably asked off them, and failure to do so is an offence in itself, so there is really a significant difference in the way that the HSE and the police carry about their investigations. One note of comfort for any witness giving a section 20 statement however, is that nothing they stay say in that statement can be used against them, they are protected from self incrimination, which isn't the case if the police were to interview you as a witness.

00:06:04 David Lee, Host

Thanks very much, Clare. If a health and safety case proceeds, does it necessarily go down one route or the other, the criminal route or the civil route? Can it be both?

00:06:20 Clare Bone, Partner & Solicitor Advocate

The two are mutually exclusive, two very different sets of proceedings. From the health and safety perspective, if the HSE think that there is a crime committed, they will report the matter to the Crown Office and Procurator Fiscal Service with recommendations on whether criminal proceedings should be taken. Now, of course, in Scotland, it is for The Crown, not the HSE, to decide what, if any, proceedings need to be taken against an organisation or an individual for health and safety breaches. One of the key considerations for The Crown is whether it is in the public interest to do so, so it may be that there is a health and safety incident but it does not give rise to criminal proceedings, that decision lies absolutely with The Crown.

00:07:05 David Lee, Host

Can I bring you in, Tony, to talk about the civil side of things as well and how cases might follow that path?

00:07:12 Tony Jones KC, Partner & Solicitor Advocate

As Clare described, the HSE or the police are generally the first responders and that necessarily means that consideration of criminal prosecution is going to come first and therefore, generally, what happens is a civil claim for damages will be dealt with after that, and that has some pros and cons depending on which side of the fence you're on. For example, if there's been a successful criminal prosecution resulting in a conviction, then as a claimant, or the representative of a claimant, that can help you because it can be pretty strong evidence of a breach of a duty of care to the injured party. Of course, if the prosecution has failed or there hasn't been a prosecution, then that may stand in your favour if you're a defender, but count against you if you're pursuing it.

00:08:09 David Lee, Host

What changes have we seen over the years, Tony, in relation to civil claims in this area?

00:08:16 Tony Jones KC, Partner & Solicitor Advocate

Well, about 10 years ago there was a fairly significant change in the law, and listeners might remember something about it, that came under a piece of legislation called the Enterprise and Regulatory Reform Act of 201. Essentially, what it did is it turned the existing law on its head, previously the health and Safety at Work Act of 1974 stated that if there was a duty imposed by health and safety regulations, it would give it a rise to an action of civil damages unless it said otherwise and what the 2013 act did was to turn that on its head and say that it wouldn't give rise to a civil claim of damages unless the provision expressly provided for one, which of course, has made it much more difficult for claimants to advance cases.

00:09:22 David Lee, Host

Can you give us any examples, Tony, of where health and safety violations give rise to civil claims for compensation? How might that come about?

00:09:29 Tony Jones KC, Partner & Solicitor Advocate

Often the term six pack used to be used and that isn't something that you get from going to the gym regularly in this context, it was a reference to six regulations which sprang out of the 1974 act, and I think there's seven now that people generally refer to, but things like the management of Health and Safety at Work regulations which required employers to carry out risk assessments, both general and specific in relation to certain tasks, so had they thought about slipping and tripping risks in premises?

Manual Handling operation regulations, which were about lifting and carrying things, had they reduced the risks of injury to the lowest possible level? To interest office workers, display screen equipment regulations, had there been training? Are workers getting regular breaks? Some of the more often used one workplace, health, safety and welfare regulations, which is things like lighting, heating, ventilation, seating, windows, rest areas, escape routes, washing facilities, changing rooms, list goes on and on as to the things that employers have to think about. Provision in use of work equipment regulations, if something's provided for you to use at work? Is it the right piece of equipment for the job? An obvious example is if you're provided with a ladder, is it too long? Is it too short? Are you having to balance on the on the ladder? Personal protective equipment and work regulations, face masks are familiar to us all, but if you're working with noxious substances, are you provided with something that will get rid of the fumes from that?

Which leads on to the 7th one, the control of substances hazardous to health regulations, and again, personal protective equipment can come into that but it's also about trying to mitigate the hazards presented to people having to work with this kind of hazardous substance. Clare's already touched on slipping, tripping, breathing in things that are noxious, etc, equipment that malfunctions, chopping your fingers off because a piece of equipment is not guarded, that's the sort of thing that can give rise to a claim.

00:12:10 David Lee, Host

Thank you very much. I suppose 7 packs, not quite as good as six pack, six pack has definitely got more of a ring to it. Back to you, Clare, when of these cases that leads potentially to a fatality or raises a particularly significant issue, when might it lead to an FAI or a public inquiry?

00:12:33 Clare Bone, Partner & Solicitor Advocate

There are certain categories of fatal accidents whereby a fatal accident inquiry, or an FAI as we refer to them, is mandatory so it must be held. Those categories include death in the course of one's employment, so from a health and safety perspective, that's where we tend to see fatal accident inquiries coming to light. There is also the opportunity for a discretionary inquiry to be held where it is in the public interest for The Court to examine the circumstances of that death and look to see what lessons might be learned. In the recent past, we've had, of course, the Cameron House fatal Accident inquiry which was conducted following the death of two residents at the hotel, so that's a good example of when a discretionary inquiry might be held. The process is initiated and run by the Procurator Fiscal, the fiscal has a dual role in Scotland to prosecute crime, but also to investigate all sudden suspicious, accidental and unexplained deaths. Now in that case, the Crown will invite parties to participate so if the client is an employer or manufacturer of equipment that might have caused an accident, they may be called as what's called an interested party to proceedings and invited to participate. That's where we would come in, as legal representatives, to appear at the inquiry on behalf of the client and to lead evidence on their behalf. Public inquiries, slightly different, they are conducted under the Inquiries Act of 2005. As opposed to being an inquiry led by the Procurator fiscal in front of a sheriff, this is a government lead inquiry with a judge appointed chair and they will be conducted where there's considered to be matters of public concern necessitating such an inquiry. So, very different to the role of an FAI, much broader in its terms of reference, an FAI can only look at issues relevant to the accident and the death. In public inquiries too, it can be harder for clients to become parties to that inquiry, referred to as core participants in public inquiries, and the chair will have a much greater control over who can appear at that inquiry and participate.

00:14:58 David Lee, Host

Thank you very much. There are additional podcasts in this series that actually do cover both fatal accident inquiries in more detail and public inquiries, if anyone's interested in listening to them in more detail. If we do go down the route of the public inquiry and particularly in FAI, there are additional legal but also reputational risks that clients could face as a result of that. What do clients need to be aware of if this happens? What kind of advice do you give them if it has gone to this worst-case scenario?

00:15:39 Clare Bone, Partner & Solicitor Advocate

Clients need to be mindful of whether or not there has been a criminal prosecution proceeding inquiry. If an inquiry is to take place before any decision is made on a criminal prosecution, there is a possibility that witnesses might be at risk of incriminating themselves when they're called to give evidence or that the way the evidence comes out at the inquiry gives The Crown pause to think about whether they should, in fact, be raising criminal proceedings, and we do often see FAI's taking place before any criminal proceedings kick off. Now, previously, The Crown used to give undertakings to individuals allowing them to give evidence in court unfettered knowing that any evidence they give could not be used against them but sadly, those days have gone, The Crown do not favour the provision of undertakings now, so we will always discuss with the client and their witnesses whether there's any potential for their evidence to be incriminatory and take steps to protect them in the FAI proceedings if they are to give evidence. In addition, whilst any determination or judgement that the sheriff gives at the end of an FAI cannot be relied upon in any other proceedings, very often solicitors for the family will use the FAI as a trial run to explore whether there might be civil liability and raise civil proceedings on the back of what they've heard at the inquiry. So, those are two really significant additional legal risks that have to be considered reputationally, of course, there are clearly reputational risks for anybody party to an inquiry. Evidence is going to be heard in court, it's a public court, the media can be present, they will report on matters at the end of each day. The determination that's made by the sheriff at the end of the day is also public, so we need to think carefully how we best present a case in court. What are the optics to the outside world and the way that we're presenting that case? What, if any, statements do we consider we need to make to the media to best preserve reputation as the inquiry is ongoing and once the determination is actually issued.

00:18:03 David Lee, Host

Very interesting, Clare. I wonder if we can move to a couple of examples, maybe one from each of you, about modern Scotland in cases that have had a really significant impact on health and safety law. Maybe Clare, one from you first and then Tony, one from you.

00:18:22 Clare Bone, Partner & Solicitor Advocate

I think, the case that I would suggest is of significance, perhaps not so much in the way the law has changed, but in the way these cases are investigated and prosecuted. If we go back to the Stockline ICL Plastics case back in 2004, listeners will probably remember the explosion that took place at a factory in Maryhill in Glasgow in May 2004, which resulted in nine employees dying, including two directors and 33 employees, seriously injured. Now, there was a major investigation into that explosion, looking not just at the business and the way it operated, but also the interactions with HSE, who had been in and out of the premises over the preceding years. Now, there was a dedicated team of police and prosecutors that led that investigation and it led really to the setting up of a work-related deaths protocol that still exists between the police, the HSE and The Crown, which sets out how they will investigate all work-related deaths. So not just the major incidents but any particular work-related death, with the police taking charge of the investigation and they will stay in charge of that investigation until such time as criminality so a crime beyond the health and safety legislation can be ruled out. As I say, this remains in place today and has really shaped the way HSE investigations run.

00:19:55 David Lee, Host

Thank you, Tony?

00:19:58 Tony Jones KC, Partner & Solicitor Advocate

Well, just to come on the back of the Stockline one and then give you an illustration of another case. The Stockline of course was important also because it demonstrated that the bereaved relatives and other injured parties could raise claims for personal injuries but it also involved claims by adjacent proprietors for damage to their property because it was a fairly substantial explosion, and indeed it set a major legal precedent in relation to the time limit within which you have to bring such proceedings, which is five years from the date on which the incident occurred, and you sustained damage.

The case that I would mention is 1 from July of this year and it's called Rose against WNL Investments Limited and things move very slowly in the law world, this was the first case in Scotland under the new legislation, that I mentioned a few moments ago, and poor Mr Andrew Rose had died as a result of falling through a roof, it was a fragile roof, which is a fairly well-known hazard. If you crawl across a fragile roof, it can break and you can fall through and the bereaved relatives brought an action looking for damages for the death of Andrew Rose, understandably. But what they were trying to say, amongst other things, is their legal team was saying that the regulations that I referred to earlier set a benchmark against which an employer should be judged and that in establishing, as they needed to do, that the employer had breached a duty to take reasonable care for the safety of Mr Rose, it was appropriate to look at those regulations and to judge what that reasonable standard was. In that case the judge, Lord Sanderson, gave a very detailed and useful judgement where he lamented the fact that the legislation doesn't give any guidance as to the interplay between how you look at the duty of reasonable care at common law as we call it and how you look at the regulations. What he said is well, you can look at the regulations as a benchmark for the purposes of informing factually what the duty to take reasonable care might be but the fact that the regulations may set a benchmark does not mean that the law requires you to do that. So, you can have a contravention of the regulation which might be seen as a benchmark, but that doesn't necessarily mean that it will be a breach of a duty to take reasonable care and I think anybody working in the civil side over the coming years will be referring to Rose against WNL for quite a number of years to come.

00:23:19 David Lee, Host

Thank you very much. 2 great examples there. If we just look a little bit more about some of the specific things that have happened over the last 20 years or so. First of all, Clare, The Inquiries Act 2005, what is the significance of that act as it relates to health and safety law?

00:23:37 Clare Bone, Partner & Solicitor Advocate

The Inquiries Act has now been in force for 18 years. So far, there has only been one health and safety case brought under that regime, and we're referring again to the Stockline case, you can see that this runs through so much of what we're talking about today. Now, the main reason for the Stockline case being dealt with as a public inquiry was because the role of the HSE was under scrutiny and that necessitated that government inquiry involvement, it was felt that the issues to be looked at were so far reaching. That was the only appropriate forum rather than the fatal accident inquiry. We've not seen any since and I do believe that the fatal accident inquiry legislation and framework that we have in place adequately covers the majority of health and safety cases that we come across. Of course, we don't know what's around the corner, but certainly for now, I do feel that we will continue to see cases being dealt with by FAI rather than by public inquiry. Even such large incidents as the Carmont rail crash back in 2020, The Crown have already publicly stated that that itself will be dealt with under the FAI regime.

00:24:56 David Lee, Host

We've talked earlier on in this podcast about The Health and Safety Executive and the Crown Office and the interplay between them. Why was there a specialist unit created at the Crown Office? Why was the specific health and safety Investigation Unit created Clare, and what role does that play?

00:25:16 Clare Bone, Partner & Solicitor Advocate

Over the last 20 years or so we have seen The Crown recognising the need to specialise. It's something that we as defence agents have done for a number of years and, again, referring to the Stockline investigation, of course that's not the first major incident that Crown Office have had to deal with, there have been Piper Alpha, the Lockerbie bombings, there have been certainly very detailed large scale incidents that they've had to deal with, but I do believe that following Stockline and the specialist team that were put into action on that, The Crown recognised the merit and having a dedicated team of procurator fiscals depute throughout Scotland, who would deal with all health and safety cases, so not just the major incidents, any health and safety case reported by the HSE will now go into that unit rather than into a local fiscals office as used to happen. Only good has come from that.

00:26:19 David Lee, Host

What about that interplay between the different agencies? If there are several agencies involved in investigating a major health and safety incident, how does that work in your experience? Does it make it a more complex process for the client? How do those agencies work together?

00:26:39 Clare Bone, Partner & Solicitor Advocate

It can be very complex for the client, it can be absolutely baffling to them. Not only do they have the police asking questions, they might have the HSE. If this is a marine case, they would have the Marine and Coast Guard Agency and the Marine Accident Investigation Branch asking questions. If there was a rail case there would be the office of Rail and Road and the Rail Accident Investigation Branch. A whole myriad of different agencies, they all have different powers, they all have different responsibilities, they all have different aims. Some are only fact finding, some are going to be reporting you to the procurator fiscal for an alleged breach of health and safety law. So, for clients it can be a very complicated process. My advice to clients is always to stay calm, seek that expert advice from us, we deal with these agencies day in, day out, we know what their responsibilities are, we know what their rights are, we know what their powers are and we can guide clients through the process of information. Whilst all the agencies will be reporting into the procurator fiscal for guidance on how they operate in terms of the investigation, they will each separately come to a client with long, long lists of documents they want witnesses, they want to speak to and we're really there to guide them on what their rights are and to guide them through the process, it's such a stressful situation for any client to find themselves in, but hopefully we're there to ease their pain.

00:28:12 David Lee, Host

It's clearly a complex area, Clare, but one question, I'm sure that that clients or anyone else listening to this will have is what are the potential sanctions if there is a major health and safety incident, what might happen to those who are found to be responsible in some way?

00:28:30 Clare Bone, Partner & Solicitor Advocate

So the ultimate sanction would be a criminal sanction, if a company, or an organisation, and its employees are prosecuted and found guilty or plead guilty to an offence, they can face a financial penalty. Now for organisations we're seeing seven figure sums being imposed quite frequently now. For individuals you can receive up to two years imprisonment, now, for somebody who went in to do their job, and ended up finding themselves subject to a health and safety failing and potentially going to prison for that it really is quite a stressful time for them. We are seeing more individuals being prosecuted and we are seeing individuals being sentenced to imprisonment now, in fact, only this year there was a Managing director of one company received 12 months imprisonment for his health and safety failings. That has to be the ultimate sanction to any individual.

00:29:28 David Lee, Host

As we've said, it's a complex area you've just outlined. There are quite punitive sanctions that are available to the authorities as well. So what's your broad advice, Clare? Summing everything up to clients, or potential clients, who find themselves caught up in a health and safety case?

00:29:48 Clare Bone, Partner & Solicitor Advocate

Well, as you say, David, these cases can be complex, they are all consuming as well. Don't underestimate how much time these investigations take up of businesses and their employees. They're being investigated by specialist agencies, they have a specialist prosecutor reviewing what action is to be taken. My advice would be that as soon as you are aware of an instant contact us and we can guide you through that process from the initial stages right through to any court proceedings that might follow.

00:30:20 Tony Jones KC, Partner & Solicitor Advocate

Well, it's very easy for me to say, but I would say call our experts immediately that you have a problem and it's easy for me to say because, as previously discussed, it is more likely Clare and her team that will get the call at two in the morning than me. Whether you're worried about a criminal prosecution or defending or pursuing a claim for damages, getting the right legal experts early gives you the best possible chance of a positive outcome and a good example of that is a case Thompson v Cavernagovern which I dealt with 25 years ago, and it was where poor Mr. Thompson had fallen inside a ship that he was working on, and he alleged that the plank that he was walking on, the scaffolding, had broken but by the time they got to the civil claim, the plank had disappeared, nobody knew where it was, and the case got all the way to the, then, House of Lords, now, the Supreme Court on arguments about photographs of the plank. Anyone involved in that case, I think, would have found a much easier case to deal with had the plank actually been available and had the lawyers been in right at the start, then the plank might have been preserved. So, the moral of the story is it's never too early and rarely too late to call us a Brodies.

00:31:41 David Lee, Host

Thanks very much, Tony, for that example. Eric Sykes-esque example of a plank related mishap there.

Thank you to Tony and thank you to Clare for your excellent insights today. You've been listening to Podcasts by Brodies where some of the country's leading lawyers and special guests share their Enlightened Thinking about the big issues and the developments having an impact on the legal sector and what that means for organisations, businesses and individuals across the various sectors of the UK economy and wider society.

If you'd like to hear more, please subscribe to Podcasts by Brodies, which you can find by searching all of the main podcast platforms and for more information and insights, please visit www.brodies.com.