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civil liability (1B1)

Civil liability refers to the ‘penalty’ that can be imposed by a civil court.
A civil action generally involves individuals, with a claimant suing a defendant for a remedy or
remedies; in most cases the remedy takes the form of damages, a form of financial
compensation.
A civil case must be proved on the ‘balance of probabilities’, which is a lesser standard than
that of ‘beyond reasonable doubt’, which is required in a criminal case.
Many claims for injuries sustained at work pass through the civil courts or may be settled out
of court.
The civil courts are the County Court and the High Court.
employers’ liability The liability owed by an employer towards his employers,
both under criminal law and civil law.
legal liability (1A4) This term refers to the liability that one person may have to
another (e.g. employer to employee, occupier to visitor or manufacturer of a
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product to a user of that product), under both criminal and civil law. See Figure
L.1.
absolute liability (1B1) Certain duties under health and safety law are of an absolute
nature, and are not qualified by the terms ‘so far as is practicable’ or ‘so far as
is reasonably practicable’.
Absolute duties are qualified by the term ‘shall’ or ‘must’, e.g. the absolute duty
to maintain work equipment in an efficient state, in efficient working order and
in good repair under the Provision and Use of Work Equipment Regulations
1998.
When charged with an absolute offence it may be possible to submit a plea in
mitigation.
no fault liability (2B3) This term implies that there is no requirement to establish
fault or intent in that a claimant is automatically compensated for injury, damage
or loss by the state or some other organization. It thus dispenses with or disregards
the common law and statutory elements of liability.
occupiers’ liability (1B1) This is concerned with the duties of people and
organizations who occupy land and premises, whose land and premises are
visited by people for a variety of purposes.
Section 4 of the HSWA requires that people in control of premises take reasonable
care towards others who may enter their premises.
Anyone who is injured while visiting or working on land or premises may be in
a position to sue the occupier for damages.
Occupiers’ liability is dealt with in the Occupiers’ Liability Acts 1957 and 1984
(OLA).
The OLA 1957 established a common duty of care to all lawful visitors, namely
a duty to take such care as in all the circumstances of the case is reasonable to
see that the visitor will be reasonably safe in using the premises for the purposes
for which he or she is invited or permitted by the occupier to be there.
Section 1 of the OLA 1957 defines the duty of occupiers to all persons lawfully
on the premises in respect of dangers due to the state of the premises or to things
done or omitted to be done on them.
Visitors to premises are classed as both invitees and licensees. Protection is
afforded to all lawful visitors, whether they enter for the occupier’s benefit, such
as customers, or for their own benefit, such as an enforcement officer, though not
to persons exercising a public or private right of way over premises.
Under the OLA 1957, occupiers have a duty to erect warning notices, but a
warning notice does not in itself absolve the occupier from liability unless in all
the circumstances it is sufficient to enable the visitor to be reasonably safe.
An occupier must be prepared for children to be less careful than adults and must
be aware of any lure or attraction to children, such as a pond, that could constitute
a trap.
The OLA 1984 imposes a duty on the occupier in respect of trespassers, namely
persons who may have lawful authority to be in the vicinity or not, who may be
at risk of injury on the occupier’s premises. The above duty can be discharged by
issuing some form of warning, such as the display of a notice, but such a notice
must be very explicit and its requirements actively enforced by the occupier.
Product Liability (2B4) An area of health and safety law concerned with both the
criminal and civil liabilities of all those in the manufacturing chain towards
consumers of their products. Criminal liability is covered in the HSWA (section
6) and other ancillary legislation, such as the Consumer Protection Act 1987.
Injury sustained as a result of using a defective product could result in a civil
claim against a defendant based on negligence.
Principal duties rest with designers, manufacturers and importers of products,
secondary duties with wholesalers, retailers and other persons directly or indirectly
involved in the supply chain.
vicarious liability (1B1, 2B3) This form of liability is based on the fact that if an
employee, whilst acting in the course of his or her employment, negligently
injures another employee or the employee of another employer, his or her employer,
rather than the employee, will be liable for that injury.
Vicarious liability rests on the employer simply as a result of the fact that he or
she is the employer and is deemed to have ultimate control over his or her
employees, i.e. the Master and Servant relationship.
This liability must be insured against under the Employers’ Liability (Compulsory
Insurance) Act 1969. Employers cannot contract out of this liability as it is

Corporate liability refers to the liability of all those directing


an undertaking, namely the corporate body.
A corporate body (e.g. the directors, chief executive, etc. of a company) may be
liable for most criminal offences providing a fine is specified for the offence, the
offence is committed by a ‘controlling mind’, such as a managing director,
company secretary or director, and it is committed in the course of his or her
corporate duties.
Section 37 of the HSWA makes provision for a constituted board of directors to
be prosecuted where an offence is committed through neglect or omission on
their part. Where a functional director is guilty of an offence, he or she can
personally be prosecuted in addition to the organization.

criminal liability (1B1) This refers to the responsibilities of persons under statutes
and the penalties that can be imposed by the criminal courts.
A crime or a breach of criminal law is an offence against the state. The burden
of proving a criminal charge beyond reasonable doubt rests with the prosecution.
Where a person is found guilty, a court will impose some form of punishment,
such as a fine, or imprisonment, or both.
Compensation may be ordered by a court to be given to a person to cover
personal injury and damage to property.
Cases are heard initially in the Magistrates’ Court, but may be referred to the
Crown Court for trial before a judge and jury.
damages Civil liability consists of an award of damages for injury, disease or
death at work in circumstances disclosing a breach of common law and/or statutory
duty (normally negligence) on the part of an employer/occupier of premises,
arising out of and in the course of employment.
General damages relate to losses incurred after the hearing of an action, namely
actual and probable loss of future earnings following an accident.
Special damages relate to quantifiable losses incurred before the hearing of the
case, and consist mainly of medical expenses and loss of earnings.
In the case of fatal injury, compensation for death negligently caused is payable
under the Fatal Accidents Act 1976, and a fixed lump sum is payable under the
Administration of Justices Act 1982 in respect of bereavement.
danger Liability or exposure to harm; a thing that causes peril.
When applied to machinery in motion it is a situation in which there is a reasonably
foreseeable risk of injury from mechanical hazards associated with contact with
it or being trapped between the machinery and any material in or at the machinery,
or any fixed structure. Or being struck by, or entangled in or by any material in
motion in the machinery or being struck by parts of the machinery ejected from
it, or being struck by material ejected from the machinery.
(BS 5304: Safeguarding of Machinery)
defences (negligence and breach of statutory duty) (1B1, 2B3) Where presented
with a civil claim, a defendant may deny liability on the following grounds:
• that the duty alleged to have been breached was never owed to the claimant
in the first place;
• that the nature of the duty was different to that pleaded by the defendant – that
the duty was complied with;
• that the breach of duty did not lead to the injury, damage or loss in question;
• that the claimant was partly to blame, i.e. was guilty to contributory negligence,
which resulted in the injury, damage or loss.
hierarchy of duties Statutory duties give rise to criminal liability and there are
three distinct levels of duty.
Absolute or strict requirements (e.g. where the risk of injury or disease is inevitable
if requirements are not followed); duties are qualified by ‘shall’ or ‘must’.
‘Practicable’ requirements imply that if, ‘in the light of current knowledge or
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invention’ or ‘in the light of the current state of the art’ it is feasible to comply
with the requirements, irrespective of cost or sacrifice, then such requirements
must be complied with (Schwalb v. Fass H. & Son, 1946).
‘Reasonably practicable’ is a narrower term than physically possible and implies
that a computation must be made in which the quantum of risk is placed on one
side of the scale and the sacrifice involved in carrying out the measures necessary
for averting the risk is placed on the other side.
If it can be shown that there is gross disproportion between the above factors (i.e.
the risk is insignificant in relation to the sacrifice), then the defendant discharges
the onus on himself (Edwards v. National Coal Board, 1949).
insurance The Employers’ Liability (Compulsory Insurance) Act 1969 requires
employers to insure against claims by employees suffering personal injury, damage
or loss.
The Certificate of Insurance must be displayed conspicuously at the workplace.
The policy must state that any person under a contract of service or apprenticeship
who sustains, injury, disease or death caused during the period of insurance and
arising out of the course of employment will be covered for any legal liability on
the part of the employer to pay compensation.
and inadequate information, instruction and training.
5.
5.4.5 Dangerous occurrence
This is a ‘ near miss ’ which could have led to serious injury
or loss of life. Dangerous occurrences are defined in the
Reporting of Injuries, Diseases and Dangerous Occurrences
Regulations 1995 (often known as RIDDOR) and are always
reportable to the Enforcement Authorities. Examples
include the collapse of a scaffold or a crane or the failure of
any passenger-carrying equipment.
In 1969, F. E. Bird collected a large quantity of accident
data and produced a well-known triangle ( Figure 5.3 ).
It can be seen that damage and near miss accidents
occur much more frequently than injury accidents and
are, therefore, a good indicator of risks. The study also
shows that most accidents are predictable and avoidable.