Construction of new roof results in carbon monoxide deaths for two elderly people

A recent case involved a builder being fined £100,000 for the deaths of an elderly couple following renovations to their home.  This is a case which is worthy of note and this update contains information, particularly in the graphic below (developed by British Gas)   vital information for anyone having work conducted at their premises or home which involves work close to a gas flue.  Read on for more information and please review the graphic for guidance.

Mohammed Jamil was contracted to raise a garage roof at a house on Mallock Road in Leyton, London, between 14 February and 31 March 2009. During these works he also renovated the garage to allow access to the property’s extension.

On 21 April 2009, homeowners Donald O’Sullivan, 74, and his wife Rosetta O’Sullivan, 71, were found dead at the property having suffered carbon-monoxide poisoning.

As a result of the garage roof being raised the flue of a boiler had become enclosed,which allowed the gas to travel back into the boiler. The gas was able to leak into the house via a crack in the boiler’s casing.

HSE inspector Kevin Smith explained that the flue needed to be positioned a minimum of 300mm above the roof but Mr Jamil had failed to contact a Gas Safe registered engineer to move the flue to comply with these requirements; instead, he cut a hole in the roof, which he assumed would be sufficient to allow the hot gases to escape.

“This graphically illustrates the dangers of builders carrying out work without considering the effects on gas appliances,” said HSE inspector Kevin Smith.

“The builder failed to comply with the standards and regulations relating to gas fittings, which resulted in work that left flues in a dangerous condition, and allowed a colourless, odourless, ‘silent killer’ to enter the property.”

Jamil appeared at the Old Bailey on 20 July and pleaded guilty to breaching reg.8(1) of the Gas Safety (Installation and Use) Regulations 1998. He was fined £75,000 plus £25,452 in costs, and was given a 12-month community order, which required him to undertake 150 hours of community service.

In mitigation, Jamil said he hadn’t taken steps to raise the flue because he was following instructions from the homeowner. He entered an early guilty plea and had no previous convictions.

If you’ve got questions or need support on safety in the industrial, contracting or construction sectors please contact us for sensible and proportionate advice on 01453 800100

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Asbestos regulations could cost farming alone £6bn – justifiable or scientifically unsound?

It remains uncommon knowledge that there are two distinct types of asbestos fibre, amphibole and serpentine. They differ in the structure of their mineral crystals, one being based on iron silicates and one being a magnesium silicate.

In simple terms, the types which we see being spoken about within industry and construction are blue, brown and white.  Of these blue and brown are of the amphibole type and are known to cause the disease mesothelioma while white asbestos is quite a different matter, having no clear cases of exposure which have been reliably linked to cancers.

The HSE has agreed that white asbestos is at least an order of magnitude less dangerous than blue and brown asbestos and recently the media have revived the story of asbestos as the National Farmers Union and one of its members mounts a legal challenge aimed at the Department for Work and Pensions arguing that implementation of new regulations face farmers (among others) with a very significant and, arguably, unjustifiable bill amounting to nearly £6bn.

So, the question must be, what is the truth behind this?

Basis in scientific fact

As is often the case, the argument from a scientific basis is really quite clear.  Large amounts of asbestos are in place on farms, as well as on many industrial sites, most commonly as corrugated cement roofing sheets (often referred to as ‘big six’) which does contain asbestos material which is typically white and in a concentration of about 8-12%.  As these materials were manufactured some time ago by a variety of  producers to an approximate formula we cannot be sure on actual figures in the sheets which we see in use and herein lies the crux of the problem.

Uncertainty gives rise to risk

During the production process an amount of white asbestos would have been added to the cement mix for these roofing sheets and their associated rainwater goods.  But, this level of concentration could vary widely.  In addition, should white asbestos have been in short supply, it was not uncommon for a blue or brown asbestos type to have been substituted giving rise to a far greater risk.  Typically, samples are obtained by specialist consultants before any dismantling and sheets are taken down whole and under wetted conditions to prevent the spread of fibres, but, without sampling all of the sheets how can we be sure that the risk is controlled and therefore, how can we be assured that our controls are adequate.

No safe limit

It seems that science can reliably tell us that white asbestos is relatively harmless and easily metabolised by the human body once it enters the lungs but what it cannot tell us, despite many years of research, is what constitutes and significant level of asbestos exposure.  Past cases have shown that those with relatively limited exposures may well go on to develop mesothelioma whilst, in some circumstances, those with a far higher exposure level can remain well – the exceptions prove the rule but no one is capable of saying that exposure to relatively few fibres is safe.

The real situation

Under laboratory conditions we must accept the following;

  • White asbestos is unlikely to cause mesothelioma and is capable of being metabolised within the lungs (even glass, mineral wool and carbon fibres can be broken down in the lungs and do not give rise to mesothemiolma from research conducted)
  • White asbestos is at least one order of magnitude less dangerous that its amphibole cousins;
  • White asbestos used in roofing sheets, rainwater goods and similar asbestos containing materials (ACM’s) is trapped within a cementatious matrix and fibre release can only occur through damage;
  • Good techniques involving removing sheets whole and using a wetting agent can reliably control risk to acceptable levels.

In the real world we must make allowances for these facts;

  • The type and concentration of asbestos within roofing sheets, rainwater goods and similar ACM’s is variable and unknown;
  • There is no accepted safe level of exposure to amphibole asbestos fibres;
  • Techniques and controls which are adequate for controlling exposure to white asbestos are likely to be quite inappropriate for blue and brown asbestos.

In conclusion

The question which remains is would we choose to take the chance with our loved ones that exposure to white asbestos is likely to be OK given that the far more dangerous amphibole types are possibly present?

Given that there is no accepted safe level of exposure I would personally say I would not.  However, if the choice between leaving the sheets in place, provided they remain in good condition, and removing them is given – then any regulations which require this would certainly not have our backing or that of any other sane, and scientifically minded, safety consultant.

 

Clients:  If you have a specific question on this matter please telephone your retained safety consultant on 01453 800100

Personal injury and the claims culture – when and how are you considered negligent?

Personal injury and the claims culture – when and how are you considered negligent?

Many clients have seen claims made against them and also many others simply operate in fear of being sued for some negligence that they may or may not have caused.  When someone, an employee or a member of the public, slips, trips or otherwise hurts themselves the phrase “where’s there’s a blame there’s a claim” seems to appear from a by stander so the what’s the truth about this negligence and what about your liability?

“Negligence” is defined as a failure to exercise the level of care which a reasonably prudent person would do in similar circumstances.  In other words you must have acted reasonably to prevent such harm occurring and it should have been reasonably foreseeable.

In order to successfully claim compensation for negligence the injured party (claimant) must satisfy the following three tests.

  • The claimant must demonstrate that they were owed a duty of care by the defendant.
  • It must be proved that the duty of care was breached.
  • The breach of duty must have caused the harm, damage or other loss for which compensation is claimed.

Test 1: was a duty of care owed?

Numerous cases and legislation over the years have established who owes a duty of care to whom. This includes employers towards employees and occupiers towards visitors, for example.

Test 2: was duty of care breached?

Assuming that Test 1 has been passed, the next consideration is whether there was a breach of duty. For this the claimant needs to show that the defendant knew, or should have known, that they were placing them at substantial risk. One of the proofs required is that the injury or damage caused was “foreseeable”.
A defence which is sometimes successful is to show how many thousands of times the particular activity has been carried out without any sign of danger, i.e. it wasn’t foreseeable.

Test 3: causation

Many cases fail because the injured party isn’t able to show that the breach of duty was the particular cause of their injury.

Case Law
In Sutton v Syston Rugby Football Club 2012, the Court of Appeal found that the rugby club was not liable for a player’s injury. The club had owed a duty of care to the player (Test 1) and had breached that duty when it failed to conduct a pitch inspection (Test 2). However, the claimant failed to prove that the pitch inspection would have identified the obstacle in the grass which caused the injury, i.e. Test 3.

When you pass details of a potential claim to your insurers, give them detailed information about any positive steps taken to prevent the accident (even if they didn’t prove effective in this particular case), e.g. training, inspections, maintenance etc. This is key in determining if the claim can be defended.

Computer generated fit notes now in place

Update from Lindsey Hall, our occupational health consultant

“From the start of this month, GPs will begin to provide computer generated fit notes and I have attached the guidance for both employers and employees for information.  These will be the same design as the current note although on one side of A4 paper.  There will also be a unique barcode for identification reasons although interestingly this is not on the sample, which is linked from both of the above documents, therefore any notes provided to you without a code are likely to be spurious. “

“Some of you may already have had one or two but it is still early days.  Many GP surgery IT systems will need to come into line so I expect it to be some months before you see them in any numbers although the intention is for most practices to be using them by early 2013.”

Continue reading Computer generated fit notes now in place

Can a private landlord face prosecution under the CDM Regulations for work on a domestic (non commercial) property?

The common view of the CDM Regulations is that they only apply to commercial work and that it must be either demolition or dismantling or come under the 30 day / 500 person day rule. This is NOT the case.

Reference to the regulations show that the requirements above relate strictly to the requirement to report the work to HSE and to then appoint a competent and adequately resourced CDM Coordinator and Principal Contractor.

In the case below we can see that the accused was in fact a domestic landlord who let one of his properties through an agent. In this case CDM would not apply in the sense of it being reportable nor would a CDM Coordinator need to be appointed but the duty of care remain in place as does the need to manage the project properly under the CDM Regulations themselves as they will, in fact, still apply.

Background

In November 2009 Jagdev Singh Bal (JSB) was contacted by his letting agent who informed him that there was a problem at one of his properties of which JSB was the landlord.

The bathroom ceiling had become damaged by  ingress and on investigation it was concluded that the roof needed to be replaced. JSB contacted Sarabjit Singh Sanghera (SSS), a self-employed builder and he together with his brother and two labourers commenced repairs to the property.

However, as the small team were finishing their repairs and clearing the site, SSS was found unconscious at the bottom of a ladder. He had sustained serious head and neck injuries and died later in hospital as a result of his injuries.

HSE investigation

Inspectors discovered that the work had been carried out wholly from ladders despite the height and complexity of the task. Clearly a scaffold should have been used as work at height is the most common cause of death within the UK.

It was also apparent that at least three of the four workers had received no training in  roof work or construction health and safety. JSB was charged with breaching Regulation 9(1)(a) of the Construction (Design and Management) Regulations 2007 (CDM). They require clients to take reasonable steps to check that the management arrangements for the work are suitable so that the job can be completed safely. He pleaded guilty and was fined £4,000 plus costs of £4,129.

CDM still applies

Property developers have been an HSE target for at least the past 3 years and will continue to be targeted. This is a rare example of an individual residential landlord being charged with a health and safety offence but this case does underline the point that whilst there are exemptions under CDM for domestic premises, it’s the status of the client rather than the property which triggers the exclusion; domestic clients are “People who have work done on their own home or the home of a family member, that does not relate to a trade or business, whether for profit or not.”

In summary

If you own property which isn’t home to one of your family members, then any work which is considered to be “construction” comes within all the requirements of CDM meaning you must;

  • check the competence of any tradespeople you appoint, e.g. are registered with a trade body and have relevant construction training and experience;
  • ensure that there are suitable arrangements to do the work safely. This doesn’t mean you need to check every detail or supervise the work, but look for broad signals that it will be completed correctly.

Personal Injury Claims From Car Accidents On The Rise Whilst Actual Accident Fall

We are currently in a situation where personal injury claims are at a record level and most of these, around 70%, are linked not to health and safety but to road traffic accidents.  In addition to this legal fees, as a proportion of these claims, are at a record high of 142% of the total compensation.

Note: We are advising our Safety~net clients to take extra care to protect themselves by carrying a disposable camera and accident forms in all company vehicles, if you’d like an example accident form just let us know and we can send you a copy in Word doc format.

Figures released from the actuarial profession have shown that despite a reduction in road traffic accidents of 11%, personal injury claims have increased by 18%, costing the insurance sector an additional £400 million per year.

The upward trend in personal injury claims is likely to have a negative impact on insurance premiums as this additional cost is passed on to business with 2011 having the highest recorded number of claims to date.
David Brown, Chairman of the Institute and Faculty of Actuaries commented:

“This continuing rise in personal injury claims seems, yet again, to coincide with the growth of claims management companies. Over the period 2010 – 2011, the number of claims management companies in England and Wales increased by 20%, most notably in known accident and claims “hotspots”. And where there is a notable increase in claims management company activity in an area, there is a corresponding increase in personal injury claims.”

However, the Government does have plans to restrict the amount of money that claims management companies can make from “no win, no fee” cases by changing to damages based agreements meaning legal fees must be settled from any compenstion paid.  With this legislation having been expected in March of 2012 and then postponed to March 2013 the sharp rise in personal injury claims in 2011 could be a response to this.

Too hot to work: When and how and what must you do?

Temperatures in the workplace have long been a point of discussion not just for safety professionals and managers but for anyone who works in a busy office.  Ever since the days fo the Factories Act we have had defined figures for what is and isn’t acceptable but these have always been regarding the minimum and not maximum temperature; 16oC after the first hour of work for offices and 13oC for those in more active jobs in warehousing for example.

However, this isn’t to say that the minimums apply to everyone as there are some jobs where it just wouldn’t be practicable to provide that level of heat, for example; those working in construciton on outside projects ro staff employed in cold stores – exceptions can even be made for reception areas as long as a localised heat source is supplied.

But, when it comes to high temperatures with have no limits precribed by legislation but we do still have a duty of care to our employees and others so how do we go about applying this?
Well, it is true to say that things have changed slightly of late with new guidance being issued by HSE on thermal stress which applies directly to office environments.  Should your staff complain this gives clear guidance on what you must consider.

Air conditioned offices Are more than 10% of employees complaining of being too hot or too cold?
Naturally ventilated offices Are more than 15% of employees complaining of being too hot or too cold?
Retail businesses, warehouses, factories and all other indoor environments that may not have air conditioning Are more than 20% of employees complaining of being too hot or too cold?

If the answer is YES to the above, then you may need to conduct a thermal comfort risk assessment. When conducting a risk assessment:

  • listen to your workers views and concerns. They are experts in their jobs, and may have noticed things that are not immediately obvious. Also speak to your employees representatives (e.g. unions and other staff associations) in the workplace,
  • contact industry federations or associations etc, and consider speaking to managers in other companies that are involved in the same business as your own;
  • seek expert advice.

Identifying the problems

Is a detailed risk assessment required, or might the problem be solved simply? Simple solutions may include:

  • closing windows in air conditioned offices;
  • pulling down blinds to prevent solar radiant heat etc;
  • providing employees with sufficient control to adapt the environment by adding or removing layers of clothing;
  • look – visually inspect the workplace to identify hazards that may impact on employee thermal comfort;
  • look for patterns in the absenteeism rates, types of illnesses and their frequency of occurrence, the nature of employee complaints etc.
  • take particular note of where the employee may work, their job, how experienced they are, whether any illnesses are recurring etc.

Things to look out for include:

  • Are there any heat sources in the workplace?
  • Are workers exposed to external climatic conditions?
  • Are workers wearing PPE?
  • Are workers involved in intensive physical activity?

HSE to introduce Fee for Intervention (FFI) from 1st October 2012

The Health and Safety Executive (HSE) has confirmed that its enforcement cost recovery scheme, Fee for Intervention (FFI), will start on 1 October 2012 (subject to Parliamentary approval).

The scheme will allow inspectors discovering a material breach of health and safety guidelines / standards / requirements to charge the duty holder £124 per hour for their time following a notification letter produced after their initial visit.
FFI was originally due to begin in April 2012 but was postponed until October to allow final details to be defined such as appeals processes. Fees will be based on the amount of the time the inspector spends identifying the breach, helping the duty holder to put it right, and investigating and taking enforcement action. Cost recovery will stop at the point HSE’s intervention ends or prosecution proceedings begin (if warranted).

HSE has now published guidance on its website setting out how FFI will work in practice. Developed in consultation with representatives from industry, it includes examples illustrating how FFI will be applied by inspectors and information about how any disputes about charges will be resolved.

Gordon MacDonald, HSE’s programme director, said:

“Confirming the date for the start of Fee For Intervention and publishing the guidance will give duty holders clarity and certainty about the start of the scheme and what they can expect.
“We have worked with industry representatives in shaping the final form of the scheme and the published guidance explains how the scheme will work and what businesses can do to comply with the law and avoid incurring a fee.
“It is right that those who break the law should pay their fair share of the costs to put things right – and not the public purse. Firms who manage workplace risks properly will not pay.”

The main concerns of industry and ourselves as safety consultants are that the scheme is capable of damaging existing positive relationships between HSE and duty holders.  Further, with the HSE currently more than half way through a £80m cut in its central budget we would suggest that HSE could come under increasing pressure to alter its overall activities to maximise receipts from FFI as a way of funding itself in future.

The guidance on FFI can be found at: http://www.hse.gov.uk/fee-for-intervention/index.htm