New DfT Regulations on Transportation of Dangerous Goods
On 1 July 2009, an important new SI comes in to force. The Carriage of Dangerous Goods and Use of Transportable Pressure Equipment Regulations 2009 implements a raft of European Directives. It is the principal regulatory provision applied by enforcing inspectors of the DfT. These cross-border regulators undertake a similar role to HM Inspectors of Health and Safety in the specialist area of road and rail transport.
To read the SI and Explanatory Memorandum in full, follow the link:
http://www.opsi.gov.uk(...)uksi
http://www.opsi.gov.uk(...)em/uksiem
Sentencing round-up
At Perth Sheriff Court on 26th May 2009, Thomas Thomson (Blairgowrie) Ltd was fined £9,000 for a breach of section 2(1) of the HSWA 1974. A Director was fined £1,800 for a breach of the Managements of Health & Safety at Work Regulations 1999. A fruit farm worker was fatally electrocuted whilst carrying a metal pole under an unmarked overhead power line.
http://www.compasschambers.co.uk/news
At Dundee Sheriff Court, on 8 June, Discovery Homes (Scotland) Ltd and Richard Pratt, one of its two directors, were fined £5,000 and £4,000, respectively for breaches of sections 2(1) and 37 of the HSWA 1974. A brick-layer was fatally injured when he fell into an unguarded smoke extraction shaft on the site.
http://www.compasschambers.co.uk/news
Decline in workplace fatalities
HSE has released provisional figures indicating the number of people killed at work in Britain has fallen to a record low: 180 workers were killed in 2008/09, which represents a fall of 17% on the previous lowest total of 217, which was recorded in 2005/6.
Compass Regulatory Members:
Peter Gray QC
Andrew Smith QC
Mark Stewart QC
Gary Allan QC
Jamie Gilchrist QC
David Sheldon
Barry Divers
Steve Love
Susan Duff
Graeme Middleton
Amber Galbraith
Barry Smith
Yvonne Waugh
Compass Clerking Contacts:
Irene McKenzie
Michelle Williamson
Grace MacRae
To view previous
Bulletins:
January 2009
February 2009
April 2009
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FATAL ACCIDENT INQUIRY REVIEW Interim Report Published
On 29 May, Lord Cullen published an interim report following consultation with interested parties in his review of Fatal Accident Inquiry Legislation. The report details Lord Cullen’s review of the responses received following the publication of the consultation paper in November 2008, which set out the scope of the review and the principal questions and issues to be considered.
As practitioners are aware, an FAI, as much as a criminal prosecution or civil action arising from a workplace death, will often present difficult issues for corporate clients and individual duty holders. Without the evidential strictures of a criminal trial or the narrow focus of a civil claim, an FAI can, and often will, give rise to wide-ranging public scrutiny of a company or individual, and its internal processes. Lord Cullen’s Review will have potentially significant consequences for this important area of regulatory practice.
Of the significant issues under consideration, readers’ attention is drawn to the following passages:
Procurators fiscal – the appointment of specialist procurators fiscal to lead the inquiry appears to have received strong support, although there was no consensus on the question (see para. 2.12 et seq.). In fact, COPFS may have pre-empted any recommendation by Lord Cullen to that effect: it is understood that fiscals from the COPFS Specialist Health & Safety Division – reported on in the February edition of the Bulletin – will be given responsibility for FAIs concerning workplace deaths.
Mandatory FAI categories – the interim report provides no clue as to whether Lord Cullen will recommend any change to the categories for mandatory FAIs, particularly deaths at work. Interestingly, none of the responses specifically referred to in the report consider whether deaths at work should remain within the mandatory categories (see para. 3.2 et seq.).
Discretionary FAIs – importantly, the review considers whether interested parties, other than relatives, should be able to make representations to the Lord Advocate in considering whether a discretionary FAI should be conducted. Lord Cullen refers to the “many respondents” in favour of such a system (see para. 3.12 et seq.). It remains to be seen, in the event of this being implemented, how much influence other interest groups (such as CFCA, trade unions etc) and corporate bodies will have on the Crown’s decision to hold a discretionary FAI.
Legal aid – any change to the provision of public funding for representation of next of kin is likely to be contentious and politically difficult. Nonetheless, Lord Cullen cites strong views in favour of reform to ensure equality of arms in FAI proceedings: “The Judges of the Supreme Courts referred to unfairness of the employers being likely to be better able to afford legal representation than relatives…” and others agreed (see para. 4.14 et seq.).
Evidence and procedure – amongst those issues considered by the review, changes in the rules of evidence procedure applied to FAIs are likely to have the greatest immediate impact on the way in which inquiries are conducted. Issues likely to form the basis of recommendations by Lord Cullen include the introduction of Preliminary Hearings throughout Scotland (see para. 5.2 et seq.)., rules on pre-disclosure of material (see para. 5.8 et seq.)., citing of independent experts and expert assessors to the Inquiry (see para. 5.19 et seq.). and relaxation of the rules on the use of signed and sworn statements. On the latter issue Lord Cullen cites the Compass Chambers response in favour of the status quo with the emphasis on oral evidence tested in court (see para. 5.14 et seq.). To read the Compass Chambers Response in full, follow the link:
http://www.compasschambers.co.uk/news
Determinations and recommendations – the final section of Lord Cullen’s report deals with proposed reforms to the content and effect of sheriff’s determinations. Important issues include the proposal, which found considerable support from those consulted, that recommendations be contained in a database and monitored for compliance. This latter proposal has clear implications for duty holders (see para. 6.1 et seq.).
Lord Cullen has indicated that he will look further into individual topics before proceeding to his conclusions, which will be published in a report later this year.
To read the report in full, follow the link:
http://www.scotland.gov.uk/About/fatal-accident-review/
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Compass Chambers