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Civil Law:
Civil law is concerned with individuals. Civil law
is based on decisions made by judges (Common
Law Judicial Precedent) and aims to award
compensation to restore the victim to the same
position they were prior to the act.
Civil action can be brought by someone who
feels a wrong doing has been brought against
them. It is based on the law of torts.
A Tort is a civil wrong doing and may involve
common or statute law.
Claims need to be brought within 3 years of the
wrong doing. This is based on a balance of
probabilities.
Statute barred means no longer legally
enforceable.
Criminal Law:
Criminal law is concerned with written law passed by
parliament. It is where a crime has been committed by
breaching a law.
Punishment can consist of fines or imprisonment and is
predominantly based on statute law.
Statute law is written down in forms of acts, regulations etc
and MUST be complied with.
Criminal cases can be heard in magistrates court, and cases
heard here are Summary offences. Fines are limited to
20,000 per breach.
Serious cases are heard in the Crown Court. These are
indictable offences (formal accusation of a crime) with
unlimited fines. Offences are triable, or triable either way
(can elect between a judge a jury and summary trial in a
magistrates court).
H&S cases triable either way are most often used in H&S
prosecutions on the principle of beyond all reasonable
Direct / Indirect
Insured / Uninsured Costs to
a Business
Criminal Law
Civil Law
Court Hierarchy
Powers of Inspectors:
Enter a premises at any reasonable time,
accompanied by a police officer, if necessary.
Examine, investigate and require the premises
to be left undisturbed.
Take samples, photographs and, if necessary,
dismantle ad remove equipment or substances.
Require the production of booked or other
relevant documents and information.
Seize, destroy or render harmless any
substance or article.
Issue enforcement notices and initiate
prosecutions.
Enforcement Notices
There are two types of enforcement notice. They are:
Improvement Notice Issued if there is a breach of relevant
statutory duty provisions (or there is likely to be a repeat), but no
imminent harm will be caused. The notice will require the issue to
be resolved over a given period of time.
Prohibition Notice Issued when there is likely to be a risk of
serious or imminent danger. There doesnt have to be a breach of
legislation (although it is usually the case). The notice will prevent
the use of equipment or premises. Failure to comply with this type
of notice is a criminal offence.
An organisation can appeal within 21 days of receiving a notice. An
improvement notice will be suspended during a case, whereas a
prohibition notice will remain in force.
Appeal are made on the grounds of: Incorrect interpretation of the
regulations, inspector has exceeded powers, breach of law
admitted but claim insignificant, breach was admitted but
guidance to rectify not possible or practicable.
Enforcement Notices
Powers of Inspectors
Tort of Negligence
A tort of negligence gives the affected party change to seek
compensation for a wrong doing. To bring a case of negligence,
specific criteria have to be met:
A Duty of care was owed.
The duty of care was breached
As a direct result of the breach, the claimant suffered harm or
injury.
The defendant has an opportunity to respond and will need to reply
on one or more of the following:
Duty of care was NOT owed (e.g. defendant was a third party /
employee not acting in course of employment)
Breach of care did NOT directly result in harm.
Denial of facts.
Contributory Negligence (partial defence involves defendant
taking a portion of the blame. Defendant needs to identify their
own failures and apportion blame to a third party of claimant,
which can reduce compensation or dismiss it altogether.
Claimant voluntarily accepted the risk Volenti non fit injuria.
Act of God.
Tort of Negligence
Client Duties
Absolute
Highest level of duty. Has MUST or SHALL. Duties MUST
be complied with. There are not many in regards to H&S
but are in the requirements to have a H&S policy and
risk assessments. Cost cannot be taken into account. It
is absolute, so must be complied with irrespective of
cost.
Qualified
Practicable Duties qualified by the word practicable.
Cost not a determining factor. If technically feasible, it
should be done.
Reasonable Practicable This is the lowest level of duty.
Allows for a balance of risk versus cost. If costs
outweigh the risks, duty is discharged. If risk is too high,
CDM Regulations
Client Duties
Designer Duties
Ensure the client is aware of their duties.
Make sure they are competent for the project they are
doing.
Coordinate their work with others.
Cooperate with the CDM coordinator and others.
Provide information for the health and safety file.
Must avoid foreseeable risks AFARP (eliminate risks,
reduce risks from any remaining hazards, give collective
risk reduction measures).
Take account of the workplace regulations when
designing a workplace.
Provide information to assist the clients, other
designers and contractors.
Can provide information via notes on drawings, written
information on the design, suggested sequence of
Contractor Duties
Check client is aware of their duties.
Do not start the work until pre-construction phase
information has been received.
Plan, manage and monitor their own work.
Inform any contractor they engage about minimum
time allowed for planning and preparation.
Report any hazardous information.
Cooperate with others on the project.
Work in accordance with the construction phase plan.
Provide information for the health and safety file.
CDM Regulations
Designer Duties
CDM Regulations
Contractor Duties
CDM Regulations
CDM Coordinator Duties
CDM Regulations
Principal Contractor Duties
Pre-Construction Information
Description of project
Client considerations and management requirements
Environmental restrictions and existing onsite risks.
Significant design and construction hazards
H&S file description of format and conditions relating to the
content.
Construction Phase H&S Plan.
Description of the project / Management of the work.
Arrangements for controlling significant site risks.
H&S file / Site security / Site induction
On site training / Welfare facilities and fist aid.
Accident and incident reporting and investigation
Production and approval of risk assessment and safe systems of
work documents.
Site Rules / Fire and emergency procedures.
The plan should also define arrangements for controlling risks that
include:
Access / Egress, delivery and removal of materials and waste,
services, adjacent land use, preventing falls, work with or near
fragile materials, control of listing operations, maintenance of plant
and equipment, excavations, work on wells, underground caverns
or tunnels, diving, caisson or compressed air, work on or near
water.
CDM Regulations
Competence for CDM
CDM Regulations
Contractor Duties
CDM Regulations
Part 4 CDM Regulations
CDM Regulations
Pre-Construction /
Construction Phase H&S
Plan