HSE Publishes Initial Report on the Buncefield Incident
In mid-July 2006, the HSE published its initial report on the Buncefield Major Incident Investigation, summarising and updating material from the three previous Progress Reports on the nature of operations at Buncefield, the timeline of key events, the emergency response and the progress of the Investigation.
Evidence shows that the main explosion probably resulted from the ignition of a vapour cloud emanating from Tank 912 in Bund A in the Hertfordshire Oil Storage Limited West site, most likely resulting from an overfill of unleaded petrol. The report describes the probable mechanism for the creation of the vapour cloud, but it is uncertain why the explosion was so violent.
The report is in two parts, Part 1 being a summary of the incident and subsequent investigation and Part 2 dealing with issues of concern arising from the investigation to date. The second half of the document is taken up with annexed information.
The main findings since the publication of the Third Progress Report relate to the functioning of the systems used to shut down fuel delivery when a storage tank is full; the likely composition of the fuel released from Tank 912; and the on-going monitoring of the environmental impact of the incident, particularly in relation to groundwater contamination. Despite earlier assurances to the contrary, the incident has now been declared a Major Accident to the Environment (MATTE). The Investigation continues.
Manufacturer Prosecuted Four Times in Six Years
At Liverpool Crown Court in July 2006, Sonae (UK) Limited, a manufacturer and processor of particleboard, was fined £70,000 and ordered to pay £77,046 costs following a prosecution by the HSE after a fire and dust explosion at its premises on the Knowsley Industrial Park in June 2002, during which an employee suffered serious blast injuries.
It was the fourth time in its six years of trading that the company had been prosecuted for criminal breaches of health and safety legislation. The earlier incidents had also resulted in serious injuries to employees and the company had paid nearly £100,000 in fines and costs after prosecutions in 2000, 2001 and 2004. In addition, the company had been fined for environmental offences.
The HSE commented that the design and construction of the factory did not take adequate account of safety. The production line was made up of sections designed and installed by different suppliers and there was no adequate risk assessment of how the components might interact as a system. In the present case, smouldering material entered one process section and caused a fire that was able to spread through the entire production line.
Health Trust Fined for Latex Allergy
Swindon and Marlborough NHS Trust was fined £1,000 and ordered to pay £10,000 in costs at Swindon Magistrates' Court after admitting to failing to properly assess the risk to a nurse from skin exposure to latex gloves. The prosecution was brought by the HSE as the nurse was documented in her occupational health records as having a known allergy to latex, and it was noted that the trust should supply her with low allergy gloves.
On returning to work from maternity leave she was provided with latex gloves to wear, causing her to develop dermatitic skin problems which were identified by the trust's occupational health therapist. The trust claimed that it did have an appropriate policy in place at the time, but it was not followed through adequately.
CPS Prosecution of the Metropolitan Police for Menezes Shooting
In a controversial move, the Crown Prosecution Service announced in July 2006 their intention to prosecute the London Metropolitan Police Commissioner for offences relating to an employer's duty of care to persons who are not employees under the Health and Safety at Work, etc. Act 1974 (HSWA) , following an investigation by the Independent Police Complaints Commission (IPCC) into the death of the Brazilian national Jean Charles de Menezes, who was shot dead in an underground train by police officers after allegedly being mistaken for a suicide bomber.
The HSE issued a press statement distancing themselves from the decision, stating that they took no part in the investigation of the death or the decision to prosecute under HSWA.
Newsagent Chain Blocks Fire Escape Routes with Fireworks
In July 2006, Forbuoys Ltd, a company which owns a chain of retail newsagent premises, was fined £30,000 and ordered to pay nearly £6,700 in costs at Exeter Crown Court for offences under the Manufacture and Storage of Explosives Regulations 2005 relating to the storage of fireworks on two of its premises.
Under the cited Regulations, any company that wishes to store or supply fireworks must first register with its local authority. If a company is storing and supplying more than 50 kg of fireworks then its registration certificate must be produced on demand. The charges were brought by Devon County Council Trading Standards Department after it inspected Forbuoys stores in Axminster and Tiverton in January 2005, following an alert to a possibly hazardous situation by a member of the public.
The company was found to have been storing nearly two tonnes of fireworks on its Axminster site, more than eight times the legal limit. Fireworks were being stored near a fluorescent light with a risk of explosion. Boxes were piled up around a fire exit for use by employees and customers, and others were stacked at the bottom of a staircase.
The court found that the company had failed to provide a system which had due regard to safety, putting at risk employees, local residents, passers-by and emergency services.
In May 2000, Forbuoys had been found guilty of incorrect storage of boxes of fireworks on its site in Staines and fined £2,000; and in 2003 it failed to respond to formal cautions by Trading Standards Officers regarding legislative breaches when storing fireworks at its Axminster and Honiton premises.
Employer Fined for Crushed Fingers Incident
On 17th July 2006, a man trading as Aztec Screeding, of Chalfont St Peter, Buckinghamshire, was fined £3,000 and ordered to pay £3,028 costs at the City of London Magistrates' Court following a prosecution brought by the HSE after an investigation into an incident in December 2004 in which a construction worker's fingers were partially amputated.
At the time of the accident the employer and an 18-year-old employee were involved in laying concrete flooring at the Wembley National Stadium site using a screed pump. The machine first mixes the cement and then pumps it under high pressure through a pipe to the area being worked on. A safety grill, designed to prevent access to the mixing paddles inside the machine, had been removed and a safety interlock switch had been overridden. Whilst emptying a bag of cement into the mixing chamber of the pump, the young employee's left hand was dragged into the machine. Three of his fingers were crushed requiring partial amputation down to his first knuckle.
The employer pleaded guilty to breaching Regulation 11 of the Provision and Use of Work Equipment Regulations 1998 , in that he did not ensure measures had been taken to prevent access to dangerous parts of machinery. The HSE commented that the risks associated with employing young people are well known and managers of young persons should take into account their inexperience and possible lack of awareness in assessing potential dangers. In this case, if the employer had ensured the screed pump on site was properly maintained and that the manufacturer's operating instructions were followed, and that his employee was adequately supervised, the accident would not have happened.
HSE Revamps Five Steps to Risk Assessment
The Health and Safety Executive has updated its well-known risk assessment guide, first published in 1993, to place more emphasis on putting practical actions into effect.
The 11-page booklet is available free online at www.hse.gov.uk/risk and provides advice and tips on five key elements to an effective risk assessment: identifying the hazards; deciding who might be harmed and how; evaluating the risks and deciding on precautions; recording findings and implementing them; and finally ensuring they are reviewed at regular intervals.
The basic elements are supported by four examples of what a risk assessment might look like. The examples help emphasise that risk assessment need not be difficult for non-health-and-safety-trained personnel, and the paperwork need not be long and complicated, as bullet points work just as well.
HSE Guidance on Emergency Plans for Major Accident Hazard Pipelines
L82 A Guide to the Pipelines Safety Regulations 1996 provides advice on the HSE interpretation of the Regulations and how they will be enforced. In late July 2006, the HSE issued a guidance booklet entitled Further guidance on emergency plans for major accident hazard pipelines - the Pipelines Safety Regulations 1996. The purpose of this document is to amplify the advice in L82, especially in relation to the roles of local authorities and pipeline operators in preparing emergency plans. It is available online at: http://www.hse.gov.uk/pipelines/emergencyplanpipe.pdf.
Environment Agency Criticises Delays in Buncefield Cleanup
In a letter sent to Hertfordshire Oil Storage Ltd and made public by the Environment Agency (EA), the EA severely criticised the oil companies responsible for cleaning up after the blaze at the Buncefield oil depot in Hertfordshire last year, claiming that they have not fulfilled their duty to protect the environment after failing to dispose of millions of litres of toxic water left over from efforts to tackle the fire.
The continued storage of 26 million litres of the water at the nearby Thames Water Maple Cross sewage works was unacceptable. Some 800,000 litres of stored firewater, laced with hazardous chemicals and spent fire-fighting foam, leaked from a separate site into the River Colne in June 2006. There had now been a seven-month delay in submitting proposals to remove the risk. The delays were not technical, as it had already been agreed to use such technologies as reverse osmosis and activated charcoal to clean the firewater.
The EA ordered urgent checks on the remaining storage tanks, which hold the water and foam used by 650 fire-fighters. The water was tankered away after it collected behind a protective bund on the site, designed to contain the spill if an oil tank ruptured.
Hertfordshire Oil Storage Limited said that it intended to present the results of its tests, together with recommendations for treatment and safe disposal of the firewater, to the EA and the water companies in the near future.
A UK Corporate Manslaughter Bill Finally Emerges
The UK Government published its Corporate Manslaughter and Corporate Homicide (England and Scotland) Bill on 20th July 2006. This proposed new legislation is designed to allow the prosecution of companies whose gross negligence leads to the death of employees or members of the public. Under existing law a company can only be convicted of corporate manslaughter if there is enough evidence to identify a single senior person as being responsible. As is well known, only small organisations have a structure which enables such a case to be proven to the satisfaction of a court. This was why attempts to bring corporate manslaughter charges against Balfour Beatty and Network Rail senior managers over the Hatfield rail disaster collapsed last year.
The proposed new offence addresses the deficiency by enabling the courts to consider the overall picture of how the activities of an organisation were managed by its senior managers, rather than focusing on the actions of one individual. However, the Bill does not place specific legal health and safety duties on directors of companies, an omission welcomed by the CBI and Institute of Directors but criticised by the TUC. The Bill does not remove Crown immunity for all health and safety offences, nor increase penalties for health and safety offences.
The Bill will be debated in Parliament this Autumn and will eventually become law in Spring 2007. Although it represents a significant reform, it is the intention of the Government that the new offences will be used only in the most serious cases.
Earlier this year, the Health and Safety Commission indicated that it would not be making a decision on recommending a new legal duty on directors until after the Corporate Manslaughter Bill had been finalised. It had previously been expected that separate Scottish legislation would be introduced and the Bill would cover only England and Wales, but the Scottish Executive and the Home Office decided that, since it dealt with health and safety, it was a matter for Westminster.
Implementation Date of the WEEE Directive Announced
In late July 2006, the UK Government announced that the implementation date for the much-delayed EC Directive on Waste Electrical and Electronic Equipment (WEEE) will be 1st July 2007.
Before then there will be yet another round of consultations as the Government attempts to find a means of actually making the process work. The WEEE Directive was due to come into force in August 2004 but has been delayed repeatedly by the Department of Trade and Industry due to problems preparing the draft regulations and guidance notes, and confusion over how the legislation would be implemented.
The complementary Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment Regulations 2005 (RoHS) came into force on 1st July 2006.
Final Report on the Hatfield Train Crash Published
A final report on the Hatfield rail crash was published in late July 2006 by the Office of Rail Regulation (ORR), summarising the inquiries carried out by an independent investigation board set up by the HSE. The report severely criticised both Balfour Beatty and Railtrack (now Network Rail), stating that Balfour Beatty failed to effectively manage the inspection and maintenance of the track at the site of the Hatfield incident. The report also stated that Railtrack failed to effectively manage Balfour Beatty's work.
The immediate cause of the derailment was the fracture and subsequent fragmentation of the rail near to Hatfield. The rail failure was due to the presence of multiple and pre-existing fatigue cracks in the rail, and the maintenance contractor at the time, Balfour Beatty Rail Maintenance Ltd, had failed to manage effectively the inspection and maintenance of the rail at the site of the accident.
The ORR became the health and safety regulator for the rail industry on 1st April 2006, when responsibility was passed over from the HSE.
HSE Prosecutes Seven Parties over Warrington Death
The Health and Safety Executive is prosecuting seven separate parties following the death in September 2002 of an untrained demolition worker, who fell eight metres when he stepped on a fragile roof light at premises in Chesford Grange in Warrington. He and another untrained demolition worker were using the roof to access another roof on the site.
The Manchester company for which the dead man worked and its managing director each face two charges under Section 2(1) of the Health and Safety at Work, etc. Act 1974 (HSWA) in that they failed to provide a safe system of work and failed to ensure that people working on site were properly trained and supervised, and a third charge under Regulation 9(3) of the Lifting Operations and Lifting Equipment Regulations 1998 in that they failed to ensure that lifting equipment was properly examined and inspected.
The principal contractor company for the Chesford Grange demolition project and its former managing director, who moved to Australia after the incident, each face a charge under Section 3(1) of HSWA in that they failed to ensure that risks to non-employees were adequately controlled.
The former contracts manager of the principal contractor, and a man who was acting as the site foreman, each face a charge under Section 7 of HSWA in that they failed to ensure the safety of other employees.
Yet another party is a partner in the property management company acting for the owner of Chesford Grange, who was the planning supervisor for the project. He has already pleaded guilty to two charges under Regulation 15 of the Construction (Design and Management) Regulations 1994.
The cases are on-going at Warrington Crown Court and Warrington Magistrates' Court.
Plant Hire Firm Fined for Grass Roller Death
In July 2006, Ashtead Plant Hire Ltd of Plimstock, also known as A-Plant, was fined £75,000 and ordered to pay £18,500 costs at Plymouth Crown Court following a prosecution by the HSE under Section 2 of the Health and Safety at Work, etc. Act 1974.
The case arose from the death of a company employee who was thrown from a moving grass roller at Butts Park cricket pitch in Newton Ferrers in April 2004. The man had gone to pick up a grass roller hired by Yealm Cricket Club. As he drove the roller up a ramp onto the back of a lorry, the roller accelerated and leant heavily to one side before he was thrown from the vehicle. The employer had failed to ensure that the equipment used by its employee was in working order; also, depressions in the ramp meant that the roller lost traction as it was driven onto the lorry. The hooks used to attach the roller to the wire winch cable were too small and one had no safety catch. The dead man was not wearing a seatbelt at the time.
Revised British Standards
The BSI has published some revised standards which are of interest to health and safety practitioners:
- BS 5499-10:2006 Safety signs, including fire safety signs. Code of practice for the use of safety signs, including fire safety signs. This document provides guidance on how to select, install, position and maintain safety signs conforming to BS 5499-1 and BS 5499-5, excluding escape route signs, to present specific safety information. It also satisfies the requirements of the Health and Safety (Safety Signs and Signals) Regulations 1996 and existing fire safety legislation.
- BS EN 60812:2006 Analysis techniques for system reliability. Procedure for failure mode and effects analysis (FMEA). The previous version of this standard was published in January 2006, but it has been amended again.
Forthcoming BS revisions include:
- BS EN ISO 14121-1 Safety of machinery. Risk assessment. Principles.
- BS EN ISO 14121-2 Safety of machinery. Risk assessment. Practical guidance and examples of methods.
- BS 18001 Occupational health and safety management systems. Requirements.
HSC Approves New Control of Asbestos Regulations
On 28th July 2006, the Health and Safety Commission recommended approval of the revised Control of Asbestos Regulations, which reduce exposure limits and implement revisions to the EU Asbestos Worker Protection Directive. The new Regulations introduce a lower single control limit of 0.1 fibres per cm3 of air for work with all types of asbestos and replace three existing sets of Regulations. There are new guidelines for the determination of "sporadic and low intensity exposure", as required by the EU Directive. The HSC also approved two Approved Codes of Practice which provide guidance on compliance with the Regulations.
Under the new Regulations, work with textured decorative coatings containing asbestos (TCs) will be removed from the licensing regime.
The HSC expects to have the Regulations in place as soon as possible before the end of 2006.
HSE Investigates Flying Artwork Deaths
On 24th July 2006, it was reported that Durham Police and the Health and Safety Executive would be conducting a joint investigation, following the Work Related Death Protocol procedures, into a somewhat bizarre incident which took place at Riverside Park, Chester-le-Street, County Durham the previous day.
A large inflatable Dreamspace art installation, a one-off structure intended to represent a maze, was erected in the park to entertain members of the public. It lifted 10 metres from the ground in a strong wind like a hot air balloon and drifted 40 metres before catching on a CCTV camera post and tumbling over. Two people in the structure at the time died after falling from it and others were injured, including a three-year-old girl.
Chester-le-Street District Council had put the installation through safety checks before visitors were allowed inside and claimed it had taken expert health and safety advice.
A specialist engineer was recruited to the HSE team and the investigation will consider all aspects of the design of the structure, concentrating mainly on the design and anchoring arrangements and the structure itself.
The organiser of a public event has responsibilities for the health, safety and welfare of the people attending the event, as well as that of employees, contractors and subcontractors working there. Although many such events are not so strictly controlled as major sporting events, there remains a health and safety responsibility under the Health and Safety at Work, etc. Act 1974, and under the Management of Health and Safety at Work Regulations 1999.
Michelin Tyres Fined for Unguarded Machinery Incident
At Stoke-on-Trent Crown Court in July 2006, Michelin Tyres plc of Stoke-on-Trent was fined £100,000 and ordered to pay costs of £12,500 after an employee lost three fingers after catching his hand in unguarded machinery. The company had pleaded guilty to a breach of Regulation 11(1) of the Provision and Use of Work Equipment Regulations 1998 at Newcastle Magistrates' Court in January 2006 and was sentenced in Stoke.
The prosecution followed an incident in September 2004 when an employee had his fingers trapped in work equipment and lost three fingers to the first knuckle joint. A safety guard that was originally part of the machine had been removed, which together with other modifications allowed access to a moving part.
The HSE said that Michelin Tyres plc had failed to ensure that all safety measures were in place on their work equipment. If the guarding arrangement had been used as in the original design, the employee would have been unable to access the moving part that was responsible for the injuries he sustained.
Meat Processing Workers Contract Q Fever
In July 2006, it was reported that 18 employees at the Scotbeef meat processing plant in Bridge of Allan, Stirlingshire, had contracted the prescribed industrial disease Q fever, a relatively uncommon infection caused by the bacterium Coxiella burnetii , which is found in farmstock such as sheep, cattle and goats, as well as wild deer and ticks.
Humans can contract the disease by contact with infected animals or by drinking unpasteurised milk. Q fever is seldom passed from person to person, although airborne spread of the disease on dust particles is theoretically possible. As an occupational disease it is most commonly reported in workers handling animal hides.
The symptoms resemble those of influenza and although most patients make a full recovery without treatment, infection may lead to the development of Q fever endocarditis, a serious heart condition.
The present outbreak is the largest for many years in the UK and the number of confirmed cases was expected to increase.
Employer Fined for Cement Burns
In early August 2006, construction company Galliard Homes of Loughton pleaded guilty at the City of London Magistrates' Court to breaches under Section 2(1) and Section 33(1)(a) of the Health and Safety at Work, etc. Act 1974 in that they failed to discharge their duty to ensure, so far as reasonably practicable, the health, safety and welfare at work of all employees. The company was fined £15,000 and ordered to pay £7,000 costs.
The prosecution arose after a plasterer suffered serious cement burns while screeding a floor onsite at Marble Arch Apartments, London, in March 2005. There had been no risk assessment or method statement completed for the work, and neither the employee nor the site manager were aware of the dangers of working with wet cement. Whilst carrying out the job, the man knelt in concrete for approximately five hours, without using any protective equipment. He was unaware of the burns he was suffering, as the initial chemical attack from setting cement is on the nerve endings.
The HSE commented that when the possibility of contact with cement cannot be eliminated, suitable measures should be taken to minimise contact with the skin, including adequate personal protective equipment. In this case a suitable risk assessment would have identified such equipment as kneepads and non-permeable clothing as being appropriate protection during the screeding operation.
HSE Gives Consent for Decommissioning Dungeness A
In early August 2006, the HSE announced that it had granted consent for a decommissioning project at Dungeness A nuclear power station in Kent.
The HSE published a report, The decision on the application to carry out a
decommissioning project at Dungeness A power station under the
Nuclear Reactors (Environmental Impact Assessment for Decommissioning)
Regulations 1999 available at:
http://www.hse.gov.uk/nuclear/nuc26.pdf which describes the reasons and
considerations behind its decision, the conditions attached to the consent and
the measures Magnox Electric Ltd will take to control any significant
environmental effects. It also provides information on the legal framework for
nuclear safety, in particular the regulations under which the consent was
granted.
European Council Directive 85/337/EEC, as amended by Directives 97/11/EC and 2003/35/EC, sets out a framework for assessing the effects of certain public and private projects on the environment and on public participation. For decommissioning nuclear reactor projects, the Directive is implemented in Britain by the Nuclear Reactors (Environmental Impact Assessment for Decommissioning) Regulations 1999, as amended by the Nuclear Reactors (Environmental Impact Assessment for Decommissioning) (Amendment) Regulations 2006.
Of the two nuclear power stations located at Dungeness, the Dungeness A plant is a legacy Magnox power station, first connected to the National Grid in 1965 and now at the end of its practical working life. It has two reactors producing 223 MW of electricity each, with a total capacity of 446 MW. Defuelling will take around three years and the turbine hall will then be demolished and be replaced by an intermediate level waste store, which will be placed on a care and maintenance basis until 2103, with final site clearance and closure by 2111. This is, of course, a longer timeframe than the life of any of the organisations involved in the design, construction, operation or regulation of the plant, a matter glossed over by the HSE and the other parties involved.
Dungeness B is an Advanced Gas-cooled Reactor (AGR) power station which came onstream in 1983. It has two 600 MW reactors, producing an output of 1,110 MW. It is due to be closed in 2018, after being granted a ten-year life extension in 2005.
Both stations were built by the defunct Central Electricity Generating Board and are now operated by two different companies, Magnox Electric, part of the British Nuclear Group (BNG); and British Energy.
The site itself is on an unstable shingle beach, the largest in Europe, and a fleet of lorries is required to move 90,000 m3 of shingle every year just to maintain the shingle defences of the plant against coastal erosion. But in 1990 the sea reached the gates of Dungeness A and the compound of the National Grid switch house next to the B Station. Thus it is unlikely that the site will be used for any future nuclear facilities once the existing power stations are closed.
Electrical Supervisor Dies after Oil Terminal Fire
One of two men seriously injured in a flash fire on 19th July 2006 at the ConocoPhillips oil terminal in Seal Sands, Teesside, died after suffering first degree burns. The fire broke out in an electrical substation at the plant and the two men were electrical workers. The Teesside plant was completed in 1975 and is designed to store crude oil for further shipment. The facility also separates natural gas liquids into ethane, propane and butane. Operations at the plant were not affected by the fire. The Health and Safety Executive began an investigation into the incident.
Employer Found Guilty of Manslaughter
The owner of Change of Style, a small Hampshire stone-cutting company, was found guilty of gross negligence and convicted of manslaughter following the death of an employee whose head was trapped and crushed in an automatic stone-cutting machine. The machine was guarded by continuous light beam sensors and hinged guards with circuit breakers. However, when the machine was first installed on the company premises in 2000, the safety devices were bypassed to save on "time wasted" during the stop-start cycle.
The owner was given a suspended two-year sentence, in the light of the consequences of a prison term on the other 25 company employees. He and his company were fined £70,000, and his son and fellow director £1,500 for one breach of health and safety legislation.
Waste Recycling Proves a High Risk Industry
In early August 2006, the HSE began a prosecution at Swaffham Magistrates' Court in Norfolk against Enviro-Waste Ltd, a waste recycling company, following an investigation into the deaths of three employees who died after being overcome by fumes in a slurry tank in July 2004. The case was adjourned for a full hearing at Norwich Magistrates' Court.
In the same week, another waste recycling worker employed by W. H. Tracy Ltd was killed in Bury after being crushed whilst using baling equipment.
The HSE report Mapping the Health and Safety Performance of the UK Waste Industry pointed out that the industry has an accident and injury incident rate of 2,500 incidents per 100,000 workers per year, which is four to five times the national average.
Pharmaceutical Company Fined for Vapour Cloud Release
At Sittingbourne Magistrates' Court in early August 2006, Abbott Laboratories Limited, a pharmaceutical manufacturer, was fined £10,000 after pleading guilty to breaching Section 2(1) of the Health and Safety at Work, etc. Act 1974, and £2,000 after pleading guilty to breaching Regulation 3(1) of the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR) . The company was ordered to pay costs of £11,221.81.
The case followed an investigation by the HSE into an incident which occurred on the company premises in Kent in November 2004. An employee was trying to recover heptane from a vessel which had become blocked. As he attempted to clear the vessel, the contents flowed to the floor and a flammable vapour cloud of heptane was created inside the building. The large volume of flammable vapour did not ignite and eventually dispersed with no reported injuries.
The company had failed to ensure the establishment of safe working and emergency procedures, and to review their methods of work. Employees handling dangerous materials were not given clear operating instructions or told what action to take should normal operations become unstable. The company did not have appropriate and practised measures in place to deal with the consequences should a chemical release occur.
The RIDDOR offence involved failing to notify forthwith the relevant enforcing authority by the quickest practicable means and within ten days send a report to the relevant enforcing authority.
Barrow Legionella Case Concludes
The trial of Barrow Borough Council and their Design Services Manager concluded in July 2006 after charges were laid for the second time by the Crown Prosecution Service (acting with the HSE, Cumbria Police and the Health Protection Agency) over an outbreak of Legionellosis in Barrow-in-Furness in the summer of 2002. Seven people died and 180 were hospitalised in the incident. The Design Services Manager was found not guilty of manslaughter, but both she and her employer, Barrow Borough Council, were found guilty under the Health and Safety at Work, etc. Act 1974. The Council was fined £125,000 and ordered to pay costs of £90,000, whilst the manager was fined £15,000.
The case highlighted the importance of taking adequate precautions to protect people from Legionnaire's disease. There were several lapses in the duty of care by Barrow Borough Council as the employer, and by the Council's Design Services Manager. Both were responsible for installations carrying a risk from Legionella , but failed to check control measures regularly or to oversee work performed on their behalf by contractors.
Consumers to Foot the Bill for Waste Recycling
The EU Waste Electrical and Electronic Equipment (WEEE) Directive will be enforced in the UK from 1st July 2007, two years late, from which date retailers and manufacturers will be responsible for the disposal of the electrical and electronic devices they produce. Under the UK legislation, they can pass on most of the cost to the consumer, although European thinking was that the new law was not meant to cost the consumer anything.
Local authorities will be required to set up WEEE areas at local recycling plants, funded by manufacturers and retailers. Retailers must explain to customers what their take-back arrangements are, and must either take back old products instore or become part of a retailer take-back compliance scheme. It will be illegal for retailers or manufacturers to charge the public to recycle old goods, but if a consumer cannot get to a take-back facility, companies will be allowed to levy a charge for picking up old devices. In addition, retailers and some manufacturers have stated that the price of new electrical and electronic products will rise to offset the costs to the producer of recycling.
The administration of the scheme will be by the Department of Trade and Industry (DTI), which has estimated that the costs to producers and retailers will be between £73 million to £100 million every year. The DTI has admitted that companies could pass on the costs to the consumer, although in Germany, where WEEE has already been implemented, there have been no rising prices for consumers.
In August 2006, the DTI announced a consultation exercise to find out exactly how the law should work in the UK, and encouraged the public to contribute using the online response forms on its website. In practical terms, a large increase in the fly-tipping of electronic waste seems inevitable.
Sudbury Chemical Leak Leads to Shutdown
The chemical leakage at the Antec International factory in Sudbury, Essex (see Chemical Leakage in Sudbury, in the Summer 2006 newsletter) resulted in the HSE serving a prohibition notice on the company, ordering the shut down of its xylenol drum oven until its control system has been redesigned, due to the fact that the system is not reliable enough to leave it unattended.
Nuclear Operators Fined for Radioactive Spillages
The Nuclear Decommissioning Authority (NDA), which took over responsibility for Dounreay and Sellafield last year, has fined two nuclear operators £2 million each for the spillage of radioactive materials. The United Kingdom Atomic Energy Authority (UKAEA) was penalised for a spill whilst radioactive liquid was being mixed with cement at Dounreay; and BNG Sellafield Ltd was fined after a mixture of radioactive fuel and concentrated nitric acid leaked from a pipe at its Thorp reprocessing plant.
The NDA insisted in its first annual operational review that it has made clear its absolute commitment to the highest standards for health and safety, security and protection of the environment (HSSE), and expects contractors to deliver sustained excellence in HSSE performance.
The NDA also owns the nuclear research sites at Harwell and Winfrith, and all the legacy Magnox nuclear reactors, most of which have been switched off. It is charged with decommissioning 20 public sector nuclear sites.
HSE Concern at North Sea Maintenance Backlog
On 14th August 2006, the HSE Offshore Division expressed concern that North Sea oil companies are failing to keep up with offshore maintenance work and allowed a backlog of at least 20,000 and 30,000 man-hours of maintenance work to develop on what are now ageing platforms. The backlog of essential work is certain to lead to more extended closures of offshore oil and gas platforms.
The shutdown of part of the Prudhoe Bay complex in Alaska due to severe corrosion in the transit lines has highlighted the problem, because some of the North Sea platforms and pipelines are of similar age to the Prudhoe Bay installations (late 1970s). The main focus of HSE concern is the effect of rust and corrosion on pipelines, stairways, safety and process equipment.
Unlike the health and safety regime in Norway, the HSE is not allowed to conduct spot checks of offshore platforms.
Council Fined for Risk Assessment Failings
Scottish Borders Council was fined £3,000 after a 16-tonne mechanical shovel ran over and broke the legs of an employee as he was climbing from the cab of his lorry. The Council admitted to a Sheriff's Court that work on the site was governed by an out-of-date risk assessment survey, with a safe system of work dating from when the volume of traffic was just one truck per hour.
The Council told the Court that they have now revised and expanded their risk assessment. A driver would normally remain in his vehicle until told it was safe to vacate it. An immobiliser has been fitted to the caterpillar vehicle and a physical barrier put in place. A member of staff is present to explain the system of work.
HSE Statistics of Fatal Injuries 2005/06
On 17th August 2006, the HSE published its delayed Statistics of Fatal Injuries Report 2005/06, which is available online at: http://www.hse.gov.uk/statistics/overall/fatl0506.pdf?ebul=stats/august-06&cr=01
The provisional number of workers fatally injured in 2005/06 is given as 212, a decrease of 5% from 2004/05 when the finalised number of workers fatally injured was 223. This is the lowest on record.
The rate of fatal injury to workers also decreased in 2005/06, from 0.75 to 0.71 deaths per 100,000 workers, a decrease of 5%, and the lowest rate on record.
The provisional number of members of the public fatally injured in 2005/06 is 384, a rise of 4% on the previous year; some 254 resulted from acts of suicide or trespass on railways (acts of terrorism fall under other legislation). The finalised figures for 2004/05 were 370 and 253 respectively.
HSC Launches Get a Life Campaign
On 22nd August 2006, the Health and Safety Commission launched a long overdue campaign called "Sensible Risk Principles" to urge people to focus on real risks causing harm and suffering instead of concentrating effort on trivial risks and petty health and safety. They point out that people carrying on with everyday activities are being interfered with in the name of health and safety, when at the same time others are suffering real harm and even death as a result of mismanagement at work.
The popular press is particularly prone to health and safety myth-making, and some local authorities use it as an excuse to justify unpopular decisions, such as closing down facilities of marginal profitability or preventing activities they find inconvenient or difficult to manage; and some decisions made by individual officials or head teachers are indeed irrational and based on an unwarranted fear of litigation. Sensible risk management is about keeping people safe, not stopping their lives.
The HSC is running the campaign in conjunction with the revamped Five Steps to Risk Assessment document, stressing a set of key principles and the practical actions that sensible risk management should and should not be about. The URL is http://www.hse.gov.uk/risk .
The HSC campaign was launched at an adventure playground, as such places provide an environment in which children and young persons can be encouraged to understand, assess and take risks to help them develop essential skills for life.
Channel Tunnel Closed by Fire
On 21st August 2006, a lorry caught fire whilst being freighted through the Channel Tunnel, around 12 km out from Folkestone. Thirty-four people had to be led to safety, rail services were suspended and Kent Police closed part of the M20 motorway. Thirty fire-fighters from both sides of the Channel tackled the blaze in the north-running tunnel. No-one was hurt. Thousands of rail passengers were delayed after services were suspended on both freight and passenger shuttles. Lorries waiting to cross the Channel had to be kept on the M20 near Dover to avoid congestion.
Farmer Dies after Handling Infected Rabbit
A farmer from Aspall near Stowmarket, Suffolk, who handled a rabbit he killed during a night shoot, contracted a bacterial infection from the carcass and died in hospital two days later from septicaemia.
The bacterium Pasteurella multocida is a common opportunistic pathogen that is not often associated with clinical diseases. It is usually found as a commensal in the upper respiratory tract of many livestock, poultry, foxes, and domestic pets such as cats and dogs. Infection in humans is often associated with a local wound caused by an animal bite, scratch, or lick. In this case, entry was probably through a recent workplace thumb injury.
In humans it can manifest itself in a wide range of symptoms but is seldom fatal if treated with antibiotics. Deaths are very rare and occur only if the patient remains untreated, or the symptoms are not recognised, and the organism enters the blood stream or vital organs.
As a footnote to this unusual incident, research into serious workplace and public health risks is undertaken by DEFRA agencies and laboratories, which investigate such problems as avian flu, BSE, foot and mouth disease, Q fever and anthrax. Such research is currently at risk as a result of cutbacks in government research agencies, and the research units face privatisation, closure, merger, relocation or other change in status under a series of reviews launched by DEFRA over the last year.
Buncefield Inquiry Begins to Wind Down
On 22nd August 2006, the HSE announced that the Buncefield Investigation Board had made changes to its investigation work at the Buncefield site. Forensic examination of the site was complete and the number of investigators involved was to be reduced. The remaining enquiries are now concentrated primarily on how the storage bunds around the tanks performed in retaining the escaped fuel and firewater during the incident.
All unconfined fuel has now been removed from the site, and the site is no longer deemed to present undue hazard. The HSE and the Environment Agency are satisfied that the dismantling of tanks and equipment, and the cleaning of the site, can now be carried out safely under the provisions of current health, safety and environmental regulations. However, the areas remaining under investigation will continue to be controlled.
The Compensation Act 2006
The Compensation Act 2006 received Royal Assent at the end of July 2006. Part 1 of the Act contains three sections, all of which have an impact upon health and safety issues.
Section 1 is concerned with the deterrent effect of potential liability provisions. A court considering a claim in negligence or breach of statutory duty may now, in determining whether a defendant should have taken particular steps to meet a standard of care, whether by taking precautions against a risk or otherwise, have regard to whether a requirement to take those steps might in future prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way; or discourage persons from undertaking functions in connection with a desirable activity.
The purpose of this clause is to improve awareness of this aspect of the law and help to ensure that normal activities are not prevented because of the fear of litigation and excessively risk-averse behaviour.
Section 2 deals with apologies, offers of treatment or other redress. Under the Act an apology, an offer of treatment or other redress does not of itself amount to an admission of negligence or breach of statutory duty. This represents a major change in the way that one aspect of liability for negligence may be interpreted by a court.
Section 3 covers the matter of damages for mesothelioma. The Act creates a quicker and simpler route for employees who contract mesothelioma due to negligent workplace exposure to asbestos to recover compensation from employers. It covers situations where:
- a person (defined as "the responsible person") has negligently or in breach of statutory duty caused or permitted another person ("the victim") to be exposed to asbestos;
- the victim has contracted mesothelioma as a result of exposure to asbestos;
- because of the nature of the disease and the state of medical science, it is not possible to determine with certainty whether it was the exposure at one workplace or another exposure which caused the victim to become ill; and
- the responsible person is liable in connection with damage caused to the victim by the disease, whether by reason of having materially increased a risk or for any other reason.
In such cases the responsible person shall be liable in respect of the whole of the damage caused to the victim by the disease, irrespective of whether the victim was also exposed to asbestos while working for another employer.
Part 2 of the Compensation Act creates a new statutory framework for the regulation of claims management services.
Part 3 of the Act covers general matters and states that the Act applies only in England and Wales, except for some provisions under Section 3 which also cover Scotland and Northern Ireland.
Nurse Wins High Court Case over Excessive Working Hours
At the end of July 2006, a nurse employed by North Devon Primary Care Trust was awarded compensation of £140,000 after a case brought against her employer for stress-related illness caused by enforced excessive working hours.
The High Court ruling was made because managers of North Devon Primary Care Trust failed to bring in temporary staff to cover for colleagues on sickness or maternity leave. The woman was supposed to work a 30-hour week but often had to work many more hours unpaid to cope with the workload. She was a health visitor looking after young children, with a caseload of 250 families; but when a colleague was absent it would rise to 500 or more cases, involving hundreds of miles of additional travel a week.
China Clay Giant Prosecuted after High Voltage Near Miss
On 18th August 2006, the china clay company Imerys, which has received a Royal Society for the Prevention of Accidents safety award for two consecutive years, was found guilty at Liskeard Magistrates' Court of one charge of breaching requirements of the Electricity at Work Regulations 1989, and another relating to the Management of Health and Safety at Work Regulations 1999 . Imerys was fined £2,500 for each offence, with £1,502 costs.
The company admitted both offences, which related to an incident in December 2005 when an articulated lorry drove through live overhead power cables, pulling them to the ground. An HSE investigation found there were no warnings to draw drivers' attention to the raised electrical wires and there were also no 'goal post' frames to limit the height of vehicles passing through, which would have made the danger of the cables obvious.
Such warnings are a legal requirement and company guidelines stipulated that these measures should have been in place anywhere drivers passed under electrical cables. However, they had not been put into effect. Supervisors at the site were not aware they were breaking regulations, as they were adhering to regulations relating specifically to dock sites, which did not require warning signs for cables as they were over six metres above ground level. In fact, the power cables were brought down only because the driver had raised the back part of his trailer, which employees had been told to do only in designated safe areas.
New Code of Practice for the Safe Use of Construction Hoists
The BSI has published BS 7212:2006, Code of practice for the safe use of construction hoists , replacing the 1989 edition which is now withdrawn. The revised standard takes into account changes in legislation and advances in technology. It gives recommendations and guidance on the installation, maintenance, examination and operation of construction hoists, including hoistway protection and the management of these activities. It includes recommendations and guidance on erection, alteration and dismantling of hoists. It also sets out the responsibilities of the various parties involved in all these activities.
The standard is applicable to temporarily installed powered construction hoists having a carrier, the movement of which is restricted or guided by one or more masts. Such hoists are used to transfer persons and/or goods between defined landing levels on engineering and construction sites. They are not intended for use as temporary working platforms.
The HSE commends the use of this British Standard to those who have duties under the Health and Safety at Work, etc. Act 1974.
HSC Advocates Heavier Health and Safety Fines
The Macrory Review was set up to assess the reform of regulatory sanctioning regimes. In August 2006, the body completed its first consultation period and submitted a report to the Better Regulation Executive of the Cabinet Office.
The Review body has stated that the current system is heavily reliant on criminal prosecution, and proposed that the use of administrative fines and other non-criminal penalties could resolve some cases more quickly and effectively. The problem is that some businesses are non-compliant with regulations because they know they can get away with it, as regulators cannot justify the cost of prosecuting.
The Review favours the deterrent imposition of heavier fines for health and safety offences, and more training for judges and magistrates so that the level of fines imposed for health and safety offences is proportionate to the gravity of breaches.
The HSE point out that despite recent high profile cases where large penalties have been imposed, the average fine for offences involving deaths at work is less than £50,000, and for all offences it is only £12,500.
The HAZRED Project
HAZRED is a three-year European project co-funded by the EU Life Environment programme with the aim of helping small and medium-sized enterprises (SMEs) prevent and reduce their production of hazardous wastes, and allegedly saving them money in the process. Changes in the legislation governing hazardous waste and the use of landfill sites are increasing waste disposal costs and having an impact on many organisations, particularly smaller businesses.
The project will work with six key industry sectors:
- General construction/building.
- Treatment and/or coating of metals.
- Maintenance and repair of motor vehicles.
- Photographic processing.
- Manufacture of speciality organic chemicals.
- Manufacture of machinery and equipment.
The plan is to set hazardous waste reduction targets and develop waste reduction plans to demonstrate the benefits of a sector-led approach and inform the practices of other EU member states.
The Environment Agency is leading the HAZRED project in partnership with the Scottish Environment Protection Agency, the Irish Environmental Protection Agency, the Welsh Assembly Government, Envirowise, the Groundwork Foundation, SafetyKleen, and the Waste Recycling Group.
The background to the project is at http://www.hazred.org.uk/fol089812, which also gives a link to a comprehensive selection of downloads.
EU Consultation on UN Globally Harmonised System of Chemical Classification and Labelling
In late August 2006, the European Commission launched a two-month Internet Consultation on a proposed Regulation on the Classification and Labelling of Chemicals based on the United Nations Globally Harmonised System (GHS). In different countries, different laws control how the hazardous properties of chemicals are described, and how this information is passed on to users. This can be confusing, as one chemical may have different country-specific descriptions; a substance might be labelled as flammable in one country, but not in another.
The aim of the UN GHS is to establish:
- Global criteria for classifying chemicals according to their health, environmental and physical hazards.
- Hazard communication requirements for labelling and safety data sheets.
Additional information is available at: http://www.unece.org/trans/danger/publi/ghs/ghs_welcome_e.html and http://www.ec.europa.eu/enterprise/reach/ghs_consultation_en.htm.
The European Commission has proposed a draft Regulation that will bring the current EU system into line with the UN GHS.
HSE Loses Foreseeability of Events Appeal
In a case brought by the HSE against HTM Limited, concerning the deaths of two employees who died after their work equipment came into contact with an overhead power cable, the HSE appealed the court verdict on two points of law relating to whether the foreseeability of events and the actions of employees can be used as defences.
In May 2006, the Court of Appeal ruled against the HSE in its attempt to argue that employers should still be required to take reasonable steps against unforeseeable risks and that negligent actions by employees are irrelevant to the guilt of an employer. If the Court had decided to allow the HSE argument, it might have removed defences against some health and safety prosecutions.
The HSE then went to the Judicial Appeal Committee, but at the end of August 2006 was refused leave to appeal to the House of Lords, on the grounds that the petition did not raise an arguable point of law that ought to be considered by the Lords.
The situation therefore remains that employers can argue in their defence that the reasonably practicable steps they are required to take by law must be considered in the context of what is foreseeable and likely. When employees behave in such a negligent way as to ignore safety systems, training and instructions, and an accident ensues, that should not prevent their employer from arguing that all reasonably practicable steps had been taken and that they should be acquitted on the basis of the isolated act of negligence by their employees.
BUPA Fined over Care Home Death
After a trial heard at Southwark Crown Court, the private healthcare company BUPA was found guilty of a breach under Section 33(1)(a) of the Health and Safety at Work, etc. Act 1974 and fined £90,000, with prosecution costs of £19,247, for failings which contributed to the death of an elderly nursing home resident, who died of pneumonia four days after falling whilst being manually hoisted into her wheelchair.
The incident took place in November 2003 at the Abbotsleigh Mews home in Sidcup, Kent, where it was alleged that employees had ignored instructions in the company patient care plan, which gave guidance on how to care for residents.
The 95-year-old woman fractured her shoulder when she fell as she was lifted into her wheelchair following a bath. Two carers should have been in attendance, but only one was present. The care assistant who was attending had been employed by BUPA for about six weeks but had not received training and had not used a Sarita hoist before.
Risk assessments and procedures for manual handling and safe bathing were not brought to the attention of care assistants and the supervision of staff carrying out lifting operations was inadequate.
The HSE commented that it was all too common for vulnerable, elderly people not to be afforded the standard of care they deserve, because the systems in place are not properly followed. In this case the resident's death was entirely avoidable.
Following the incident, the manager of the care home resigned from her job, the carer was dismissed by BUPA and another was disciplined.
BUPA Care Homes Ltd pleaded guilty in November 2004 to two other charges under the Lifting Operations and Lifting Equipment Regulations 1998. In that case a 90-year-old woman died after a brain haemorrhage resulting from a fall from a sling when she was being hoisted out of a bath. BUPA was fined £2,500 and the HSE awarded full costs.
Investigation into Runaway Train Incident
The Rail Accident Investigation Branch (RAIB) announced in September 2006 that it had initiated an investigation into a nightwork incident at East Didsbury, near Manchester, on 27th August 2006, in which an engineering train, consisting of a Class 66 locomotive with 38 wagons and a second, uncrewed, Class 66 locomotive, was running southwards towards Heald Green. As the train approached Heald Green, the coupling between the last wagon and the locomotive at the rear of the train failed, allowing the locomotive to roll away from the rest of the train.
The locomotive (a 150-tonne diesel) rolled for five miles and came to a halt after passing through a work site at East Didsbury where employees were carrying out engineering work. The men saw the approaching tail lights of the locomotive and fled clear of the line before it reached them. The train smashed through marker boards before slowing down at Burnage station, half-a-mile down the track, and then began to roll back down the slope towards the spot where the men were working. Sleepers were used to try to bring the train to a standstill, but it was only halted when engineers managed to climb on board and apply the brake at East Didsbury.
Initial investigations did not indicate any fault in the track or signalling that could have led to either the coupling failure or the subsequent movement of the locomotive.
The train belonged to EWS Rail, the largest UK freight rail operator, working under contract to Network Rail to carry out work on four stations along the south Manchester line.
HSE Takes Over Electricity Supply Safety Regulation
The Health and Safety Executive is to become the sole regulator for all safety issues associated with electricity transmission and distribution, following transfer of part of the Department for Trade and Industry (DTI) Engineering Inspectorate. Following the transfer, scheduled to take effect in October 2006, the HSE will become the thematic regulator dealing with both employee and public safety within this sector. There will now be only one safety regulator to whom incidents or injuries will be reported.
The move follows a review into regulatory inspection and enforcement with a view to reducing the administrative cost of regulation to the minimum consistent with maintaining UK regulatory outcomes. Permanent transfer will follow via a Regulatory Reform Order under the Legislative and Regulatory Reform Bill, which is expected to be enacted later this year. Engineering Inspectors are currently appointed under Section 30 of the Electricity Act 1989 and their roles for public safety include enforcement of the Electricity Safety, Quality and Continuity Regulations 2002 , which set safety standards for electricity companies to help prevent danger to the public from electrical plant and lines. They investigate fatalities and some major injuries to members of the public; handle public complaints about safety matters and carry out annual safety management audits of licensed electricity companies.
Amendments to the Carriage of Dangerous Goods Manual
The HSE has made amendments to the CDG Manual in the light of the experience of enforcement officers since the Carriage Regulations came into force. The main changes are outlined below:
- Operational strategy and enforcement: the enforcement guidance in annex 3.1 has been amended particularly to clarify expected actions in the case of missing items of equipment. There are some amendments to annex 3.2 in the same context. The information about the UMP form in annex 3.4 has also been updated.
- ADR and the Carriage Regulations: some changes have been made to the guidance in connection with the exemptions allowed to the need to appoint a Dangerous Goods Safety Adviser (DGSA).
- Consignment procedures: changes have been made to the descriptions of how vehicles should be placarded and plated. Some illustrations of common situations have been added.
- Crew and vehicle requirements: the guidance in connection with the documents to be carried has been tidied up.
- Main exemptions: more has been added in connection with clinical waste under "Small load exemptions".
Amendments have been made to the guidance under Regulation 7(4) Retail distribution. There is some discussion about DfT Guidance Note 7 and the use of tote boxes.
Common problems:
- More has been added about asbestos particularly in relation to the SP 168 exemption. There is some clarification of the status of skips as containers.
- The bowser guidance has been extended as this is a topic that still seems to be commonly misunderstood. The use of bowsers for petrol is now discussed separately.
- The guidance about clinical waste has been extensively revised and includes some illustrations.
- There is an additional item about foodstuffs and dangerous goods on the same vehicle.
- Minor amendment has been made to the guidance on medicines and pharmaceutical products.
- Substantial changes have been made to the guidance on switch loading. Advice was taken from the Energy Institute and others in this revision and it takes into account changes in practice which relate to vapour emissions.
There is an addition to the guidance on white lining and other road construction vehicles.
Working Time Rest Breaks to Become Statutory
The European Court of Justice has ruled that the UK Government is breaking the law by not obliging employers to give their staff rest breaks. The judgment followed a complaint from the union Amicus to the effect that current DTI guidelines are liable to render the right of workers to daily and weekly rest periods meaningless because they do not oblige employers to ensure that workers actually take the minimum rest period, contrary to the aims of the Working Time Directive.
The UK regulatory guidance states that "employers must make sure that workers can take their rest, but are not required to make sure that they do take their rest". This has been widely interpreted by employers as meaning that rest breaks can be lawfully denied. The European Commission argued successfully that the wording encouraged "a practice of non-compliance".
Although the law may remain unchanged, the Government must now change its guidance on rest breaks to ensure that workers know their rights and can benefit from them, and that employers know their responsibilities and meet them fully.
Rail Companies Fined for Train Derailment
In an HSE prosecution heard at the Old Bailey in London, Network Rail and the rail services company Amey were fined a total of £500,000 for the partial derailment of a First Great Western express train in West London in November 2002. The train was carrying 450 passengers from Swansea to London and travelling at 120 mph when it was derailed near Southall station. One carriage came off the tracks but nobody was injured.
The cause of the incident was a metal plate at a crossing, which had split and become lodged in the track, causing the wheels of one of the eight coaches of the express to leave the track. The train remained upright and slowed for two miles, stopping just outside West Ealing station.
The rail companies were charged with exposing passengers to risk by not maintaining the track. The Court found that the responsible persons had not ensured the track was properly maintained. Both companies pleaded guilty and Network Rail was fined £200,000 and Amey £300,000. They were ordered to pay costs.
Texas Multinational Fined for Morecambe Bay Rig Death
At Preston Crown Court, Ensco Offshore (UK) Ltd, an American oil and gas multinational, was found guilty of failing to discharge a duty to its employees and failing to carry out a suitable and sufficient risk assessment. The company was fined £115,000 with costs of £175,000.
The prosecution followed the death of a Scottish deck crew worker who fell 100 feet to his death from an offshore gas exploration platform in Morecambe Bay, Lancashire.
At the time of the accident, lifeboats on the rig had been kept cool by water hose dousing as gas was being flared off. The man was working with a supervisor to remove the hoses when he fell from the ladder. He hit the rig superstructure during his fall and was probably stunned when he drowned in the sea.
The man should not have been on the ladder from which he fell, according to safety instructions, but the company had failed to ensure that measures were in place to deal with human error. Also, there was no guard around the ladder nor was there safety harness. The Court ruled that the death could have been prevented if further safety measures had been put in place.
New Advice Leaflet on First-Aid
The HSE has published a revised version of its leaflet Basic Advice on First Aid for Use in an Emergency, INDG347(rev1), available online at http://www.hse.gov.uk/pubns/indg347.pdf?ebul=hsegen/11-sep-06&cr=03
Death Case Employers Escape into Administration
There seems to be an increasing incidence of workplace fatal accident cases in which the employer involved escapes a heavy fine by putting his company into administration before court proceedings commence. A recent example is that of the HSE prosecution of the owners of the former J R Crompton paper mill plant in Lydney, Gloucestershire, over the death in 2003 of an employee who was crushed whilst resetting a paper rolling machine when his untrained co-worker pressed the wrong button and closed a hydraulic table on him.
An investigation by the HSE and Gloucestershire police found that the company had not carried out a suitable and sufficient risk assessment for use of the machine. Also, workers were using improvised tools to reset the machine when they were inside it, a practice of which management was fully aware. The company failed to take any action to prevent the machine from operating if somebody was inside the enclosure.
J R Crompton went into administration in January 2006. The former owners were found guilty of two breaches of health and safety legislation at Cheltenham Magistrates' Court in July 2006 and fined £200. The Crown Court judge said that the fine had to be set so low because of the company's debts; if the company had been solvent he would have imposed a fine of £250,000.
Drax Abandons Carbon Emissions Reduction
The giant Drax power station in North Yorkshire has the potential to be the cleanest burning coal-fired power station in the UK, but it is now the largest single producer of carbon dioxide emissions in the country after reducing the amount of biomass fuel it burns by 90% since April 2006.
Last year the company cut its carbon dioxide output by 450,000 tonnes by burning biomass crops, but this strategy was abandoned because, it claims, the renewables energy certificates' price has collapsed and there are insufficient financial incentives. The plant has been buying carbon credits instead.
Drax reported a 2,338% rise in first-half pre-tax profit in September 2006, up from £13 million to £317 million. The company has boosted its profits because it burns coal purchased on long-term low cost contracts, while selling its electricity in a soaring wholesale power market.
Earlier in September the plant was under siege by environmentalists, protesting about its environmental record. The company admits CO2 emissions are likely to rise this year above the 21 million tonnes produced in 2005.
Employees Fined under HSWA Section 7
Two recent court cases highlighted failures in the duty to take reasonable care by employees.
In the first case, heard at Croydon Crown Court, an employee of Premier Storage, a company based in Southwark, was fined £1,000 in a prosecution brought by the HSE following an accident involving a forklift truck which left two other people seriously injured.
The two injured parties, both teenagers employed by an adjacent company, had climbed into the cage of a forklift. The warehouse manager raised the cage until it was about seven metres above ground level and left the controls. The accused was watching from nearby, and he then climbed into the truck and reversed it down the forecourt and made a sharp turn, at which point the vehicle overturned. One of the teenagers in the cage suffered a broken back, the other a broken neck and back.
The employee who had indulged in the horseplay was prosecuted under Section 7(a) of the Health and Safety at Work, etc. Act 1974 (HSWA):
"It shall be the duty of every employee while at work to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work."
In the second case, heard at Leeds Magistrates' Court, a man who was working as a security guard and who had been specifically instructed not to use any work equipment present on site, caused serious injury to a delivery driver in an accident whilst operating a counterbalance forklift truck which he had not been trained to drive.
The accident took place at the Crown Point Site in Leeds in March 2005. The security guard agreed to unload a consignment of palleted cardboard sheet delivered by a lorry, despite being untrained in forklift use and instructed by both his own employer and the owners of the site he was guarding not to use any work equipment.
Whilst he was operating the forklift, one of the 700 kg pallets fell from the forks and struck the delivery driver, fracturing his pelvis, foot and ribs, and causing spinal injuries.
The man was fined £260, again under Section 7(a) of HSWA. In such an accident, the employee is liable to prosecution, but not his employer.
Employee Crushed to Death in a Vacuum Press
In September 2002, an employee of Barkston Plastics Forming Ltd of Bolton was working inside a vacuum moulding press when it began to operate, trapping him inside. He died later from severe crush injuries to the head and chest.
The company did have a written safe system of work for this hazardous operation, but it was not suitable for the task and did not follow HSE guidelines. Company procedure required the operator to ensure that the clamping frame would not descend with the safety guard open by placing supports beneath it, and then to press the emergency stop. However, the rest of the machine would still have been powered and there was no pneumatic isolation.
The company system was routinely ignored by workers, who entered the machine without isolating it correctly from either electrical or pneumatic power sources. The company failed to provide suitable training for managers and employees, and an effective supervisory and monitoring system was not implemented.
The company was charged under the Health and Safety at Work, etc. Act 1974 and in September 2006 it was fined the maximum £20,000 amount that can be imposed by a Magistrates' Court, plus £5,100 in costs.
HSE and Police to Investigate Richard Hammond Crash Incident
On 22nd September 2006, the HSE announced that it is conducting an investigation into an incident on Wednesday 20th September 2006 in which Richard Hammond, a presenter of the BBC TV Top Gear programme, was injured when the jet-powered dragster he was driving overturned at the former RAF airfield at Elvington, near York. Mobile phone digital recording of the accident suggests that the vehicle rolled after the braking parachute was fired.
Inspectors from HSE Yorkshire and Humberside Region attended the scene the next day to begin a joint investigation with the police. The HSE enquiries relate primarily to the planning, preparation and organising of associated activities, including the marshalling and emergency arrangements. Due to the complexities and uniqueness of the incident, the investigation is likely to take some time.
New HSE Guidance on Moving Walkways
Following a series of accidents to members of the public involving moving walkways in retail premises, the HSE has published new guidance to local authority enforcement officers providing information on this type of transportation, case studies of some recent accidents, and issues for consideration. The guidance does not cover similar equipment found in mass transit sites such as airports and railway stations, although some of the advice may be relevant.
The URL is http://www.hse.gov.uk/lau/lacs/25-1.htm?ebul=hsegen/18-sep-06&cr=09.
Teenager Undergoes Arm Amputation after Machinery Incident
This year the European Health and Safety Week in October has as its theme the protection of young workers. Over the past year the number of UK workers aged 16 to 24 who were seriously injured or killed at work rose by more than 20% compared to five years ago; see http://www.hazards.org/youngworkers/.
On 16th September 2006, a 15-year-old boy who had a Saturday job at J & B Fitton Ltd, a butcher's shop in Oldham, Greater Manchester, had his right arm amputated by surgeons from the Royal Oldham Hospital at the incident site after it became trapped for two hours in a mincing machine and could not be freed. At present it is unclear how the accident happened and an investigation was initiated by Oldham Council. Although there are no age restrictions on the operation of machinery, there are specific legal requirements for risk assessments to take account of the physical and mental capability of workers under 18 to perform a particular work task. The boy should also have been under strict supervision as it was a dangerous machine.
Employee Crushed in Vehicle Reversing Accident
An accident involving a reversing lorry led to two companies being found guilty of breaches of Sections 2(1) and 3(1) of the Health and Safety at Work, etc. Act 1974 at the Central Criminal Court. Aggregate Industries UK Limited (Bardon Contracting division) and Tripod Crest Planing Limited were each fined £25,000.
The incident took place on a site in South Lambeth Road, London, in January 2003. An employee of Bardon Contracting was marking a driveline on the road surface and was unaware that behind him a Tripod haulage subcontractor was reversing his lorry towards him. The Bardon employee's legs were crushed by the vehicle.
Although both the onsite companies had recognised the risk of injury from reversing vehicles and taken it into account in their method statements, they had neglected to provide site induction on safe reversing to the visiting lorry driver.
Two Die in London Crane Collapse
On 26th September 2006, the jib of a 50 metre tall crane broke off the mast and collapsed onto an adjacent block of flats at a Barratt construction site in Battersea. The crane operator, a subcontract worker from Norfolk, was thrown from the cab and killed, as was a local resident who was crushed by falling debris as he was changing a wheel on his car nearby. The body of the latter was not recovered from under the fallen jib until four days later, to the anguish of his relatives. A third man was hospitalised with minor injuries. The Health and Safety Executive is conducting an investigation into the incident.
Work-Related Injuries in the NHS
In a recent report published by the Chartered Society of Physiotherapy (CSP) it was claimed that more than one million employees among NHS staff suffer from a bone, joint or muscle condition, particularly affecting the back and upper limbs, caused or made worse by their work. HSE statistics indicate that the average annual days lost per case was 20 days, with the total cost to society of musculoskeletal disorders (MSDs) being £5.7 bn.
The CSP expressed concern that many people with MSDs face delays in accessing treatment because Government pressure on NHS Trusts to balance their books is leading to longer waiting lists and cuts in services and staff. When left untreated, such conditions can become chronic, debilitating and very expensive.
From October 2006, the HSE will be running its "Better Backs" campaign, with the aim of reducing the incidence of back pain caused or made worse by work, its impact and the number of working days lost due to back pain. The campaign will focus on the holistic approach necessary to manage back pain and will promote sensible workplace precautions that reduce the risk of back pain, and emphasise the positive benefits of staying active with back pain. Employers and employees will be encouraged to work together to help people return to normal activities, including work.
HSWA Challenge in the European Court
In the Spring Newsletter, we reported on a case before the European Court of Justice (ECJ) involving the Health and Safety at Work, etc. Act 1974. (See "HSWA Challenge in the European Court" in the Spring Newsletter.)
In Case C-127/05 the European Commission contends that the Court should declare that: "In restricting the duty upon employers to ensure the safety and health of workers in every aspect related to the work to a duty to do this 'so far as is reasonably practicable', the United Kingdom has failed to fulfil its obligations under Articles 5(1) and 5(4) of Council Directive 89/391/EEC of 12th June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work".
Thus it is argued that the phrase stating that employers should act to protect the health and safety of their workers "so far as is reasonably practicable" does not go far enough in implementing the EC Health and Safety Directive.
In late September 2006, the Commission put forward verbal evidence against the UK Government at the ECJ in Luxembourg, arguing that the Directive imposes responsibility upon the employer in relation to all events adverse to the health and safety of workers, except in very special circumstances. The UK legislation, as interpreted by British courts, permits an employer to escape responsibility if he can prove that the cost in terms of money, time and inconvenience involved in taking further measures would be grossly disproportionate to the risk.
Any change to the current wording of the "so far as is reasonably practicable" phrase or its interpretation is likely to have a dramatic effect on how risks are assessed and controlled in the UK. In fact, nearly all current health and safety legislation would have to be rewritten and employers would have to undertake new risk assessments.
The European Court is not expected to give its final judgment until next Spring, although the ECJ Advocate General will deliver an opinion on the case in November 2006.
Employer Fined after Worker Struck by Falling Engine
On 19th September 2006, Go Plant, a plant hire firm with a depot in Granite Way, Mountsorrel, was found guilty at Loughborough Magistrates' Court of three breaches of health and safety legislation following the death of a workshop foreman who was struck on the back of the head by a steel frame carrying a lorry engine. The fatal incident took place in September 2005.
The man and a fellow mechanic were using an A-frame gantry to move a replacement lorry engine into position above a mechanic's pit. The foreman decided to use the gantry to take the weight of the engine while they shifted it across the workshop, but the gantry was designed only to move heavy items up and down and not sideways. The foreman was distracted by a mobile phone call and whilst his colleague continued to shift the engine, the frame toppled, hitting the foreman. The Health and Safety Executive prosecutor said that the company had failed to produce a risk assessment document warning employees not to use it in such a high risk way.
Go Plant was fined £250 for not registering their Granite Way depot with the HSE, £2,000 for not having a proper risk assessment and £8,000 for failing to ensure the health and safety of an employee. The firm was ordered to pay £3,342 in costs.
Buncefield Cleanup Begins
Control of much of the industrial wasteland of melted containers and miles of twisting pipes at the Buncefield oil storage depot has been handed back to Hertfordshire Oil Storage Ltd, who announced in early October that demolition of the site, using hydraulic equipment to avoid the possibility of sparking another fire, is expected to start in November and will take six to nine months. After that, environmental remediation measures will attempt to remove or neutralise hazardous toxins which entered the soil during the blaze and cleanup operation.
The company claims that all procedures were followed once the fuel overspill had been noticed, but admitted it was then too late to prevent the explosion. They had not foreseen the size of the highly flammable vapour cloud which ignited, causing the largest fire in peacetime Europe, which raged for four days.
Age Equality Legislation Receives an Early Mauling
The Employment Equality (Age) Regulations 2006 came into force on 1st October 2006, and a retirement group named Heyday has taken legal action against the UK Government challenging the new Regulations. A judicial review hearing will take place in the High Court in early December 2006. The action concerns the Mandatory Retirement Ages clause in the Regulations which Heyday alleges will allow employers to force employees to retire at or after 65, and refuse to recruit anyone over the age of 65. If the case is proven, the new law will be found to be in breach of the European Equal Treatment Directive , which outlaws age discrimination.
(See "Employment Equality (Age) Regulations 2006" in the Spring Newsletter.)
Photographic Processor Fined for COSHH Breaches
At Bristol Crown Court the photo-booth operator and processing company Photo-Me International plc was prosecuted by the HSE for failing to manage many of the mandatory requirements of the Control of Substances Hazardous to Health Regulations (COSHH), and failing in their employer duties under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR). The case followed an HSE investigation into complaints by three employees who developed severe allergic contact dermatitis after prolonged contact with chemicals they handled in the course of their work over a four-year period.
Photo-Me International was fined £30,000 for breaching Section 2(1) of the Health and Safety at Work, etc. Act 1974, and £10,000 for each of six separate breaches of the Control of Substances Hazardous to Health Regulations for not making adequate risk assessments, not preventing or controlling exposure of employees to chemicals, and for not providing any health surveillance of employees at risk. They were also fined £10,000 for not reporting a case of the disease to the HSE, and were ordered to pay £30,000 costs.
WEEE Legislation Creaks Slowly into Force
The BSI has introduced a new standard ahead of the implementation of the Waste Electrical and Electronic Equipment (WEEE) Directive in January 2007; full producer responsibility begins from July 2007.
BS EN 50419:2005 has been replaced by BS EN 50419:2006, providing manufacturers, producers and distributors of electrical and electronic equipment with information on the marking requirements needed to comply with the WEEE Directive .
The Government's consultation exercise on the WEEE Directive closed in October 2006, attracting far fewer responses than had been anticipated.
HSE Issues Warning after Fatal Lifting Accident
In January 2002, a worker died on a Hertfordshire construction site when a concrete beam fell on him from a mobile crane. An HSE investigation found that a pin forming part of the lifting tackle had fractured in two places and become dislodged, causing one end of the lifting frame to drop.
The South African equipment manufacturer/supplier company was no longer trading and therefore legal proceedings concerning failure of the defective pin would not be possible.
The HSE warning is that employers who use lifting tackle should change their LOLER inspection procedures to include components that are not visible unless dismantled.
The competent person undertaking the examination should give careful consideration to the circumstances in which such components should be removed for examination or routinely replaced. Lifting equipment manufacturers and suppliers should provide information on this subject to their customers.
The report is available online at: http://www.hse.gov.uk/construction/fatalinjreport.pdf.
Company Fined for Cement Dust Emissions
In a prosecution brought by the Environment Agency under the Pollution Prevention and Control (PPC) Regulations 2000, Cemex UK Ltd was fined £400,000 and ordered to pay costs of £12,429 for failing to ensure that an external door on a reject clinker silo was maintained in a good operating condition, as required by condition 2.1.2 of permit BL 7248, contrary to Regulation 32(1)(b) of the PPC Regulations.
The case arose from an incident in 2005 when an open silo door literally hanging from its hinges allowed the emission of a high level of fine and coarse cement clinker dust to escape from the site and reach the atmosphere. The dust travelled around three miles to Lawford Heath, covering many cars with a sticky deposit which could not be removed easily. The Environment Agency received ten separate complaints from members of the public about dust covering their cars and properties.
The court found there were a number of aggravating features to the case, in that the company had not carried out frequent enough inspections of the doors and record- keeping and housekeeping had been inadequate. The company had ignored previous warnings from the Environment Agency and restarted the cement kiln whilst knowing the door had been imperfectly repaired.
Paper Company Fined for Repeated Machinery Guarding Offences
Accrol Papers Ltd of Vale Mill, Blackburn, was fined £2,000 with £1,500 costs at Accrington Magistrates' Court in October 2006, after pleading guilty to an offence under Regulation 11(1) of the Provision and Use of Work Equipment Regulations 1998 (as amended) in that it failed to ensure that measures were taken which were effective to prevent access to the dangerous parts of a Paper Converting Machine Company re-wind machine used by its employees.
The case was similar in nature to an earlier accident in 1999 at its former premises on another site in Blackburn, when the company had been served with a Prohibition Notice for a machine guarding offence and had been prosecuted and fined after HSE officials discovered machinery was inadequately guarded.
Nobody had been injured in the most recent offence, but the HSE claimed that the inadequate guarding found on the machines in the new premises could have led to a repeat of just the sort of accident that occurred in 1999, or one with more serious consequences.
HSE Launches Health and Safety Legislation Website
The HSE has revamped its web pages dedicated to health and safety legislation with the aim of raising awareness of the range of legislation that applies to workplaces in Great Britain. A Forthcoming Legislation page is included with hyperlinks at http://www.hse.gov.uk/legislation/index.htm?ebul=hsegen/09-oct-06&cr=02 .
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