Audit-presentation-slides-glasgow-briefing.pptx

Safety Audit

1. Health and Safety Audit and Legislative Update Thursday 21 st September 2017 Glasgow

2. Welcome and introductions Dave Parr Head of Audit and Technical Services, British Safety Council Rob Pugh Senior Audit Consultant, British Safety Council Steve Love QC, Compass Chambers 2

3. Agenda 09:30 Registration, tea and coffee 10:00 Welcome and introductions ISO 45001 Update: A new International Standard for OHSMS Legislation update: Sentencing guidelines / Case review Best Practice SHE Auditing: Five Star Model Questions from the floor  12:30 Lunch and networking 3

4. British Safety Council An overview of British Safety Council’s policy and engagement work

5. Registered Charity - not for profit Established in 1957 - James Tye Policy and campaign - represent business and industry – we use the knowledge, expertise and views of our members to influence and shape health, safety and environmental management policy and law Over 6000 members - primarily in the UK, India and Middle East Our awards including the Sword and Globe of Honour and the International Safety Award Our products and services include health, safety and environmental audit, advice, awards, and education – both training and qualifications Our awards include the Sword and Globe of Honour International Safety Awards Our awards including the Sword and Globe of Honour and the International Safety Award 5 Who are we

6. How we support 6 Training, e-learning and qualifications Membership Audit and consultancy Policy and opinion Publications, awards and events Education Guidance Support www.britsafe.org/corporatebrochure

7. Events and engagement Conferences and workshops Award events Exhibitions Partner events 7 Sector interest groups Construction Manufacturing and distribution Energy and utilities Transport Stadia / Event Management Healthcare

8. Our vision No-one should be injured or made ill by work We use the knowledge, expertise and views of our members to influence and shape health, safety and environmental management policy and law. Our products and services include health, safety and environmental, audit, advice, awards, education - training and qualifications. 8

9. Our Manifesto – 5 steps 1 Promote the importance of H&S 2 Build understanding and capability 3 Commit to leadership and worker engagement 4 Share knowledge and experience 5 Campaign for sensible legislation, regulation and application 9

10. BSC Involvement in Recent Key Health and Safety / Regulatory changes 1 Löftstedt update 2 Fee for intervention 3 Temple review of HSE 4 Sentencing proposals for health and safety offences 5 CDM 2015 10

11. @ britsafe Facebook.com/ britishsafetycouncil Youtube.com/user/ britishsafetycouncil LinkedIn group and updates on our company page. Search British Safety Council. Join the conversation

12. ISO 45001: A new international standard for OH&S management systems Dave Parr Head of Audit and Technical Services British Safety Council

13. A new international standard for OH&S management systems Why the need for a new international standard? How has the ISO 45001 standard been developed? What is the content of ISO 45001? How does it differ from OHSAS 18001? What are the latest timescales for the launch of the new standard? Transition to ISO 45001 13 ?

14. ISO 45001 Natural progression from BS OHSAS 18001:2007 OHSAS 18001:90000 certificates/120 countries/40 variations of standard Lobbying for an international SMS standard Need to harmonise various OH&S standards (allowing for local regulatory requirements) and share good practice Standardised global approach to benchmarking/improving health and safety Provide a framework for local regulatory compliance. 14

15. ISO 45001 ISO PC283 (development committee) established October 2013 65 member countries represented by 90 delegates HS1 (BSI) Committee acts as UK forum for consultation Collaborative, consensus-based approach to development Closely aligned to ISO 9001 and ISO 14001 standards Standard will be reflective of Annex SL (management system standard for ISO standards) “New” concepts will be included as individual explicit clauses; context of organisation, leadership, worker participation, support (resources, information and communication, competence, awareness etc.) 15 Development of the new standard

16. Annex SL - A high level structure for all future ISO standards 1 . Scope 2. Normative references 3. Terms and definitions 4. Context of the organisation (P) 5. Leadership (P) 6. Planning for the management system (P) 7. Support (P, D) 8. Operation (D) 9. Performance evaluation (C) 10. Improvement (A) 16 A new High Level Structure (HLS) for all future ISO standards

17. Current structure ISO 45001 ( ISO/DIS 45001.2) 17 Revised (latest version) released March 2017 10 Clauses (as per Annex SL) 42 Sub Clauses 39 Annex’s (Guidance on intention rather than implementation) BS 45002 : UK guidance on implementation of ISO 45001 Clauses 4 – 10 will form basis of accreditation to ISO 45001

18. Structure of ISO/DIS 45001.2

19. 19 ISO/DIS 45001.2

20. Current structure ISO 45001 (ISO/DIS 45001.2 ) CLAUSE 1 : SCOPE Applicability of standard Intention of standard Exclusions to standard (specific performance criteria, design of OHSMS, product safety, property damage, etc) Enablement and Compatibility 20

21. Current structure ISO 45001 ( ISO/DIS 45001.2) CLAUSE 3 : TERMS AND DEFINITIONS Interested Party Worker Participation (“Involvement in Decision Making”) Consultation (“Seeking Views Before Making a Decision”) Top Management OH&S Opportunity (“circumstance(s) that can lead to improvement of OH&S performance) Continual Improvement 21

22. Current structure ISO 45001 (ISO/DIS 45001.2) CLAUSE 4 : Context of the Organisation 4.1 Understanding the organisation and its context 4.2 Understanding the needs and expectations of workers and other interested parties 4.3 Determining the scope of the OH&S management system 4.4 OH&S management system 22

23. Context of the organisation Determination of internal and external issues “relevant to its purpose” and which may influence the effectiveness of the SMS Includes external cultural, social, political, legal, regulatory, technological, economic factors which may affect effectiveness of the SMS Understanding the needs and expectations of interested parties Determining the scope of the SMS. 23

24. A key requirement of Annex SL: Context of Organisation 24

25. Current structure ISO 45001 (ISO/DIS 45001.2) CLAUSE 4.2: Understanding the needs and expectations of workers and other interested parties “The organisation SHALL determine……..” the other interested parties (in addition to workers) relevant to OHSMS the relevant needs ( ie requirements) of workers and other interested parties which of these needs and expectations are (or could become) legal or other requirements 25

26. Current structure ISO 45001 (DIS 45001.2) CLAUSE 5 : Leadership and Worker Participation 5.1 Leadership & commitment 5.2 OH&S Policy 5.3 Organizational roles, responsibilities, accountabilities & authorities 5.4 Consultation and participation of workers 26

27. ISO/DIS 45001.2 Clause 5.1 : Leadership and Commitment Top Management SHALL demonstrate leadership and commitment by : Ensuring integration of OHSMS requirements into the organisation’s business processes Ensuring OHSMS objectives are compatible with strategic direction of organisation Ensuring necessary resources Ensuring the OHSMS achieves its intended results Supporting other relevant management roles to demonstrate their leadership. Ensuring and promoting continual improvement Developing, leading and promoting a safety culture Ensuring processes for consultation and participation of workers are established and implemented Top Management: “Person or group of persons who direct(s) and control(s) an organisation at the highest level”. 27

28. Leadership “ The first rule of leadership. Everything is your fault !” A Bugs Life : Pixar films 28

29. “Leadership and Learning are indispensable to each other. Those who look only to the past and the present are certain to miss the future. Change is the law of life” JFK : Dallas (November 1963) 29

30. Current structure ISO 45001 (ISO/DIS 45001.2) CLAUSE 5.4 : Consultation and Participation of Workers Participation : “ Involvement with Decision Making” The organisation SHALL ….. Establish, implement, and maintain processes for consultation and participation of workers at all levels (including workers representatives) in the development, planning, implementation, evaluation and actions for improvement of the OHSMS Determine, remove or minimise barriers to participation Emphasise the consultation of non managerial workers in establishing needs of interested parties, policy, roles and responsibilities, objectives, controls for outsourcing, procurement and contractors, audit programmes, continual improvement 30

31. Current structure ISO 45001 (ISO/DIS 45001.2) 31 CLAUSE 6 : Planning 6.1 Actions to address risks and opportunities 6.1.1 General 6.1.2 Hazard Identification and assessment of risks and opportunities Establish ongoing and proactive process considering… Previous incidents Organisation of work (activity) Routine and non - routine activities Emergency situations Human factors Design of workplace change 6.1.3 Determination of legal requirements and other requirements (“other requirements can include collective agreements”) 6.1.4 Planning action (promotes integration into OHSMS and other areas)

32. Current structure ISO 45001 (ISO/DIS 45001.2 ) CLAUSE 6: Planning 6.2 OH&S Objectives and Planning to Achieve Them 6.2.1 OH&S Objectives establish at relevant functions and levels measurable take account of risks, opportunities and consultation with workers monitored, communicated and updated 6.2.2 Planning to Achieve OH&S Objectives resources what, when, by whom how actions will be integrated into business practices 32

33. Current structure ISO 45001 (ISO/DIS 45001.2) 33 CLAUSE 7: Support 7.1 Resources 7.2 Competence 7.3 Awareness 7.4 Communication 7.4.1 General 7.4.2 Internal Communication 7.4.3 External Communication 7.5 Documented information 7.5.1 General 7.5.2 Creating and Updating 7.5.3 Control of documented information

34. Current structure ISO 45001 (ISO/DIS 45001.2) 34 CLAUSE 8: Operation 8.1 Operational planning & control 8.1.1 General 8.1.2 Eliminating hazards and reducing OH&S risks Hierarchy of Control Principle 8.1.3 Management of Change 8.1.4 Outsourcing 8.1.5 Procurement 8.1.6 Contractors 8.2 Emergency preparedness and response

35. Current structure ISO 45001 (ISO/DIS 45001.2) CLAUSE 9: Performance evaluation 9.1 Monitoring, measurement, analysis & evaluation 9.1.1 General 9.1.2 Evaluation of Compliance 9.2 Internal audit 9.2.1 General 9.2.2 Internal Audit Programme 9.3 Management review 35

36. Current structure ISO 45001 (ISO/DIS 45001.2) CLAUSE 10: Improvement 10.1 General 10.2 Incident, nonconformity & corrective action 10.3 Continual improvement (objectives and process 36

37. How does ISO 45001 differ from OHSAS 18001? Explicit emphasis on “leadership and commitment” which will need to be demonstrable (top management especially) Focus on how health and safety systems are incorporated into the overall organisational planning Will look at opportunities presented by health and safety risk factors as well as threats (continual improvement) Emphasis on worker participation in development and operation of OHSMS Focus on prevention of ill health (including mental ill health) and immediate and long term causes of injury / ill health Preventive action clause within OHSAS 18001 will be dropped as considered integral to risk management requirements within ISO 45001 Promote integrated management approach by closer alignment to environmental and quality standards. 37

38. ISO 45001 May 2016: DIS ISO 45001 disapproved (28% rejected) June 2016: PC 283 meeting to review feedback comments received and determine Schedule for and amended ISO 45001 November 2016: PC 283 meeting agrees majority of ISO/4500.2 (revised standard) February 2017: PC 283 completes revised DIS ISO/45001.2 March 2017: DIS ISO/45001.2 issued to national bodies for consultation July 2017: Ballot for Approval ISO 45001 publication : Now likely to be October / November 2017 (Dependent on review of nature of comments) FDIS ? Technical Specification ? 38 Implementation timescales

39. ISO/DIS 45001.2 53 APPROVED : 88% 7 DISAPPROVED : (11%) ISO 45001 will now progress to an international standard status Meeting September 23rd to review comments and determine whether FDIS required November issue (if no FDIS) / early Q1 2018 if FDIS 39 BALLOT OF NATIONAL BODIES : July 2017

40. The next steps PLAN: Develop a transition plan (consult with your certification body) which will identify any resources, communications, education and support required PREPARE: Obtain a copy of Annex SL and draft DIS 45001.2 and assess the impact it may have upon your organisation’s safety management system. Maintain updated information on progress and amendments ENGAGE: with internal stakeholders (especially senior management) to ensure understanding and ownership ASSESS: Review current levels of leadership and commitment toward health and safety within your organisation. Monitor and communicate progress toward achievement of transition plan on a regular basis to promote awareness and understanding 40

41. 41 ISO 45001 WORKSHOPS : November ISO 4501 WEBINARS : December Gap Analysis Tool

42. Health & Safety Update Steve Love, QC 21 st September 2017

43. Sentencing in Scotland Notice Appeals D Geddes (Contractors) Limited TOPICS

44. 1. Sentencing Background: HMA v Munro & Sons (Highland) Ltd 2009 SLT 233 First case to consider in detail the principles to be applied in sentencing in H&S cases in Scotland Approach in R v Balfour Beatty Rail Infrastructure Services Ltd [2007] 1 Cr. App. R. (S.) 65 approved Consultation Paper by English Sentencing Council’s Guidelines of some albeit limited use

45. HMA v Discovery Homes Ltd 2010 SLT 1096 “That (2010) Guideline has statutory effect only for England and Wales but it will, no doubt, in the future be noticed for the purposes of sentencing on like offences in Scotland.” Was nmot in force at the material time Sentencing

46. Sentencing HMA v Scottish Sea Farms Ltd 2012 SLT 299 “The relevant considerations in sentencing in a case of this kind were considered in HMA v Munro in which the court endorsed the approach taken by the Court of Appeal in England in R v Balfour Beatty Infrastructure Services Ltd … This approach is reflected in the Definitive Guideline of the Sentencing Guidelines Council in England…”

47. Sentencing HMA v Scottish Sea Farms Ltd 2012 SLT 299 “The Guidelines have statutory effect only for England and Wales but may be noticed for the purposes of sentencing similar cases in Scotland.”

48. Sentencing After Scottish Sea Farms looking at: Seriousness of offence Aggravating factors Mitigating factors Minimum of £100,000 if death resulted Extended to non fatal cases

49. Sentencing RTA context (sentencing regime): Geddes v HM Advocate 2015 SLT 415 per LJC (Carloway): “ … while the court has encouraged sentencing judges to ‘ have regard ’ to the English Guideline in death by driving cases, it has not said that it should be interpreted and applied in a mechanistic way…in order to ensure a degree of consistency in this jurisdiction, albeit paying due regard to local circumstances, it may be equally important to have regard to existing precedent … ”

50. 2016 Sentencing Guidelines In force in England & Wales 1 st February 2016 – intended to increase fines for larger companies Require: 1 - Assessment of culpability 2 - Assessment of the likelihood of harm and extent of harm Application of 1 and 2 to financial matrix RESULT = BREATHTAKING PENALTY LEVELS? (Guidelines cover range from £50 to £10M … )

51. Sentencing Sentencing Generally Unlimited fines in Solemn cases Maximum £20,000 in Summary cases Fines cannot be covered by insurance No Defence and Prosecution costs in Scotland FFI? Up to 1/3 rd reduction for early guilty plea

52. Sentencing

53. SENTENCING

54. SENTENCING Turnover Now plays a central role Turnover, not profit Micro organisation <£2m Small organisation £2m-£10m Medium organisation £10m-£50m Large organisation >£50m Very large organisation ???

55. SENTENCING

56. SENTENCING

57. SENTENCING

58. SENTENCING Finances Are Key Particular Financial Issues – Very Large Organisations Companies with Limited Financial Means Public companies ( HMA v Lothian Health Board 2013) Companies in Larger Company Groups Sentencing Guidelines “ Where a defendant organisation’s turnover or equivalent very greatly exceeds the threshold for large organisations, it may be necessary to move outside the suggested range to achieve a proportionate sentence.”

59. SENTENCING Individuals U Up to 2 years imprisonment Upward trend of director prosecution (not employees)

60. Longannet PS

61. Sentencing HMA v Scottish Power Generation Ltd Facts: Longannet Power Station Faulty valve Valve passing steam Valve turned by employee unaware of fault High temperature steam under pressure Non-fatal but severe injury to permanent impairment and disfigurement

62. HMA v SPG Ltd Plea on Indictment before Sheriff Macnair at Dunfermline HSWA section 2 in – failure to maintain plant & have a system of work that was safe Sheriff rejected argument not to apply 2016 Guideline SPG Holdings Ltd turnover of £1.3 Billion Fine of £1.75M (reduced from £2.5M )

63. SPG Ltd v HMA Appeal against sentence - argued: Sheriff erred in applying Guideline Guideline mechanistic & formulaic, inconsistent with sentencing practice in Scotland; apt to interfere with judicial discretion Even if the Sheriff was entitled to apply the Guideline he did so erroneously

64. SPG Ltd v HMA Scottish Power Generation Ltd v HMA [2016] HCJAC 99; 2016 SLT 1296 per LJG (Carloway): “[35] … g uidelines from the Sentencing Council will often provide a useful cross check, especially where the offences are regulated by a UK statute … [37] In relation to the 2015 Guideline, there is no need to use it in a mechanistic or formulaic fashion.”

65. SPG Ltd v HMA “As was pointed out in Geddes (above), it is important to look at existing Scottish precedent to discover what levels of penalty are appropriate, albeit that this task may involve a cross check with any relevant guidelines.”

66. SPG Ltd v HMA Appeal allowed: Fine of £1.2M substituted (reduced from £1.5M)

67. HMA v Craig Services & Access Limited, Donald Craig and J M Access Solutions Ltd January 2017 at Airdrie Sherriff Court. Two companies and an individual were prosecuted for breaches of health and safety law in relation to a fatal accident involving a cherry defective picker.  Alexander Nisbet was operating the cherry picker. Gary Currie was removing netting from the façade of Buchanan House.  Just after noon, the main boom of the cherry picker buckled, crashing the basket to the ground. Alexander Nisbet was seriously injured but survived the crash. Gary Currie lost his life.  During sentencing, Sheriff Petra Collins stated: “I have also had regard to the 2015 Guideline from the Sentencing Council of England and Wales, and to the recent Scottish case of Scottish Power Generation Ltd v HMA [2016] HJAC 99, in which the Appeal Court comprehensively reviewed sentencing in this area of the law”

68. Craig Services was fined a total of £61,000 and J M Access Solutions was fined £30,000. Both companies were considered “small companies” and that on the financial information available to the Court, there was no realistic prospect that any fine imposed would be paid by either company The Sheriff stated that the “ fines I impose will serve to mark society’s condemnation of each company’s conduct, and may act as a deterrent to others .” The individual in this matter, Mr. Donald Craig, was sentenced to two years’ imprisonment, the maximum custodial sentenced available under the 2015 Guideline.

69. Sentencing Confusion? Despite Sheriff Collins’ observations, the secision in Scottish Power is not easy to follow … Not clear where the Appeal Court got its starting point of £1.5M from Difficulty for those providing legal advice in advising clients Strategy going forward? Reach a starting point based on pre 2016 principles, having regard to Scottish precedent Use the 2016 Guidelines as a cross-check WHAT IF A MATERIAL DIFFERENCE? LJG doesn ’ t assist …

70. What to do? Consider the financial profile of the accused – it may be beneficial to rely on the Guidelines (charity, public, small/micro or large?) – if it is, use them If it’s not? Submission to the Court that no regard should be had to them Assess level of culpability – how? Common sense? Expert evidence? Technical breach? ANALYSIS

71. Culpability Different experiences Recent discussions with Gary Aitken, Head of the Health and Safety Division, suggests: Crown in Scotland may not be unduly concerned about levels of culpability In some cases Crown may be willing to agree the level of culpability In some cases the Crown may refuse to make any submission What concession may the Crown make? Not dispute “low” culpability or suggestion of technical breach

72. What to do? Can agreement be reached between Crown and Defence – is that desirable? Maybe not … Can “low culpability” be agreed – what if “high”? Culpability/likelihood of harm/extent of harm Can the Court’s involvement and issues for consideration in assessing culpability and harm be managed? Expert evidence?

73. Domestic Precedent Fairly limited - examples: Scottish Sea Farms (2102): 2 fatalities – £500,000 discounted by one third for early plea – turnover £93M Dundee Cold Stores (2012): severe injury/non-fatal - £75K discounted to £50K for appellants 1 & 2 – drastic drop in profit - £60K discounted to £44K for appellant 3 – small family company Svitzer Marine (2013): 3 fatalities and a previous near miss – £2M discounted to £1.7M for plea – turnover £55-60M

74. Domestic precedent Very little Court required to have regard to it Does it assist in any way? If it does not assist, what are the options? Look at the Guidelines (if they assist) If it does assist? Don ’ t need to look at the Guidelines as process envisages looking at domestic precedent at the end of the process anyway Realistic to anticipate more appeals against sentence

75. 2. Notice Appeals Improvement & Prohibition Notices may be appealed per section 24 of HSWA The nature of the test? Railtrack Plc v Smallwood [2001] ICR 714 per Sullivan J: “ [the function of the Tribunal is] not limited to reviewing the genuineness and/or the reasonableness of the inspector ’ s opinions. It was required to form it ’ s own view, paying due regard to the inspector ’ s expertise. ”

76. Notice Appeals Chilcott v Thermal Transfer Ltd [2009] EWHC 2086 (Admin) per Charles J: “ … in determining whether or not that risk exists as at that time, the court does not close its eyes to matters that occurred after that time, but that is not the same approach as I would understand generally to be the expression ‘ judged with the benefit of hindsight. ’”

77. Chilcott “the court’s function is… to identify on the evidence before it, which is not restricted to matters that were in evidence before a particular date, what the situation was at that particular date . Did the relevant risk exist?”

78. Notice Appeals Hague v Rotary Yorkshire Ltd [2015] EWCA Civ 696 per Laws LJ: “In my judgement, Charles J’s approach in the Chilcott case was correct ; the question for the inspector is whether there is a risk of serious personal injury. In reason such a question must surely be determined by an appraisal of the facts which were known or ought to have been known to the inspector…”

79. Rotary “The Employment Tribunal on appeal are and are only concerned to see whether the facts which were known or ought to have been known justify the inspector’s action.”

80. Captain FPSO

81. Notice Appeals Chevron North Sea Ltd v HM Inspector Facts: Planned inspection of Captain FPSO Corroded gratings on port, starboard & forward access points to helideck “Hammer test” conducted by HSE using fire axe Remedial works agreed and implemented Prohibition Notice served

82. Chevron Appeal to ET heard in Aberdeen in 2014 Judgment issued March 2015 Report of testing of gratings (Exova Report dated 2014) taken into account Appeal allowed

83. Chevron HSE appeal to Court of Session HM Inspector v Chevron North Sea Ltd 2016 SC 709 Issue for appeal: Scope of appeal per section 24 Whether Rotary correct

84. HM Insp v Chevron HM Inspector v Chevron North Sea Ltd 2016 SC 709 per Lord President (Carloway): “In normal course, the appellant ought to be able to lead such evidence as he wishes to demonstrate that, at the material time … the metal was not in the averred condition. It is thus not immediately apparent why an appeal “against” a notice should be confined to an enquiry into the correctness or reasonableness of the inspector’s decision”

85. HM Insp v Chevron “The fundamental problem with the approach of Laws LJ (in Rotary ) is that it prohibits an appeal on the facts in a situation where it can be demonstrated that the facts or information upon which the inspector proceeded were wrong. That is the essence or purpose of many appeals on the facts .”

86. HM Insp v Chevron HSE appeal refused Appeal to Supreme Court (a first re a Notice) Issue for the SC: The scope of an appeal under section 24 The outcome of this case will have a material effect on how future appeals are determined by employment tribunals HEARING DATE TO BE CONFIRMED BUT LATE 2017 - SIST PENDING APPEAL?

87. 3. D Geddes (Contractors) Limited v Neil Johnson Health & Safety Services Limited [2017] CSOH 42 On 26 July 2012, Mr Joseph Troup, an employee of the pursuer, sustained a fatal accident while working at the DGCL’s premises at Hatton Mill Quarry, Angus.  Mr Troup was the driver of a lorry which was in the course of tipping a load of materials into a feed hopper.  At the edge of the raised area above the hopper there was a bund, whose purpose was to prevent lorries from reversing over the edge.  As Mr Troup went to tip his load, he reversed his lorry over the bund into the hopper and was killed. The accident was investigated by the HSE.  It was found that there was a build up of tipped sand and gravel in front of the bund that had allowed it to act as a ramp over which a large-wheeled vehicle was capable of driving.  The HSE determined that the stop block had been ineffective due to a combination of insufficient height and the ramping effect of the sand and gravel. 

88. D Geddes (Contractors) Limited DGCL was charged on indictment with a breach of Regulation 6 of the Quarries Regulations 1999 (which requires a quarry operator to take the necessary measures to ensure, so far as is reasonably practicable, that the quarry and its plant are designed, constructed, equipped, commissioned, operated and maintained in such a way that persons at work can perform the work assigned to them without endangering their own health and safety or the health and safety of others.  A plea of guilty was tendered and, on 12 February 2015, DGCL was convicted of the offence at Forfar Sheriff Court and, following a plea in mitigation, was fined £200,000. At the time of the accident, Neil Johnson was engaged by DGCL as a health and safety advisor with regard to the operation of the quarry.  As part of the provision of that advice, he undertook regular inspections of the quarry and supplied inspection reports. 

89. D Geddes (Contractors) Limited DGCL raised an action to recover the £200,000 fine from Johnson stating that an ordinarily competent health and safety adviser exercising ordinary skill and care would have advised it that the bund was lower than the minimum height required by the relevant ACOP, and of the need for the bund to be as vertical as possible to avoid ramping.  Had it been so advised, it would have taken the steps necessary to rectify those defects before the accident and resultant prosecution. Johnson denied having been negligent or in breach of contract, and argued that the accident occurred due to negligence on the part of DGCL in failing to take measures to address the build up of tipped material in front of the bund.  DGCL in turn denied having been negligent.  Johnson further asserts, however, as a preliminary issue, that DGCL is not entitled to recover as damages a penalty imposed upon it for its own criminal act. 

90. D Geddes (Contractors) Limited Lord Tyre: “ I was not referred to, and am not aware of, any Scottish authority bearing directly on the point at issue … There is no absolute rule in English law that a person who has committed a criminal act is precluded from recovering damages sustained as a consequence of it … It is certainly true that the courts have placed emphasis, in narrower form cases, on the need to avoid inconsistency between the criminal and civil law so that the law does not…give with one hand what it takes away with the other…. But all of these observations were made in the context of a claimant who was, or was at least presumed to have been, aware of what he was doing when he committed the offence. When one is considering the position of a person with no such awareness but who has nevertheless been punished for commission of an offence, it seems to me that a different balancing of policy considerations is required .”

91. D Geddes (Contractors) Limited “It is important to note that in a case where a person convicted of an offence seeks to recover the penalty from a third party on grounds of, say, fraud or negligence, and the defence is that the claimant was himself guilty of negligence, the court’s task is not one of weighing up the parties’ respective culpability.  If negligence on the part of the claimant is established, the ex turpi causa principle excludes his claim altogether.  As Lord Walker of Gestingthorpe remarked in Stone & Rolls Ltd v Moore Stephens … at paragraph 181, in the analogous situation of dishonesty, this is not a matter of rewarding a wrongdoer; it is because public policy requires the claimant to be denied a remedy.  The same policy considerations apply, in my view, to deny recovery by a negligent claimant.  The essential point is that a principle of causation cannot…trump ex turpi causa where the latter principle applies, however short of merits the defendant may be. ”

92. D Geddes (Contractors) Limited Legal doctrine Ex turpi causa non oritur actio - “illegality” defence (i.e. “from a dishonourable cause an action does not arise”) If in due course the court holds that the accident was caused to any extent by fault or breach of statutory duty by DGCL, that may constitute the basis for application of the ex turpi causa principle Time will tell … H&S advisers beware – insurance?

93. QUESTIONS?

94. Contact Steve Love QC M: 07920 810967 E: [email protected] Gavin Herd Practice Manager Phone: [phone] Fax: [phone] [email protected] Compass Chambers Parliament House Edinburgh EH1 1RF DX 549302, Edinburgh 36 LP 3, Edinburgh 10 www.compasschambers.com

95. Best Practice Auditing BSC Five Star Model Rob Pugh Senior Audit Consultant British Safety Council

96. Business benefits of auditing Identification of areas for improvement / strengths / trends within the safety management system Enables informed targeting of resources Provides factual information for the continual improvement of risk control and reduction of loss (potential or actual) within the organisation Provides validation (accreditation if external) of effectiveness of SMS arrangements Pro active method of demonstrating self regulation Monitors legislative (and sector standard) compliance Improves management understanding of safety management systems Enhance workplace environment and employee wellbeing Maintenance of a positive corporate image Influence supply chain standards. 98

97. Audit progression

98. New Products 2017 Five Star Process Safety Audit : Mid October Fire Safety Management Audit : September 25 th 100

99. Five Star Audits 101

100. Five Star (best practice) audit process Comprehensive, independent and objective assessment of SMS Quantifiable evaluation against best practice technique Internationally recognised audit Clarifies strengths and identifies areas for improvement Detailed recommendations and action planning Supports continual improvement Can be used as supportive evidence during tender submissions Genuine examination of maturity of SMS arrangements Generates structured route toward excellence Pre-requisite for prestigious Sword of Honour award 102 Features/benefits:

101. Five Star audit specification Mapping against recognised SMS models (HSG65 revised, ILO 2001, OHSAS ISO 45001 (draft), OSHA, etc.) Based upon PLAN – DO – CHECK – ACT management model Five domain sections which include core elements and specific sub elements Number of elements (65) with emphasis on certain subject areas and key aspects of safety management Leadership and Continual Improvement a common theme throughout the audit Five Best Practice Indicators 103 Development factors

102. FSA Specification 2017 104 Organisational commitment and structure Senior (top) Management review and continual improvement Five Best Practice Indicators Strategic planning Performance evaluation Implementation and operation

103. FSA Specification 2016 BPI 1 : Leadership BPI 2 : Stakeholder Engagement BPI 3 : Risk Management BPI 4 : Organisational Health and Safety Culture BPI 5 : Continual Improvement 105 Best practice indicators

104. FSA Specification 2016 BPI 1 : Leadership BPI 2 : Stakeholder Participation BPI 3 : Risk Management BPI 4 : Organisational Health and Safety Culture BPI 5 : Continual Improvement 106 Best practice indicators

105. Draft Example BPI Graph 107

106. Five Star Audit Specification Model 108 Sectional headings

107. Five Star Audits The Five Star Audit is an audit conducted using the British Safety Council’s numerical safety grading system.​  The overall audit grading is as follows: 5 Stars : 92 – 100% : Excellent (best practice verified in most elements) 4 Stars : 85– 91.9% : Very good (best practice verified in many elements) 3 Stars : 75 – 84.9% : Good (best practice verified in some elements) 2 Stars : 60 – 74.9% : Adequate (significant improvements required to achieve best practice) 1 Star : 50 – 59.9% : Less than adequate (extensive improvements required to achieve best practice)   Scoring and grading

108. Five Star Audit 2017 Specification Model 1.01 Scope, nature and scale of OHSMS 1.02 OH&S policy statement 1.03 Structure (roles, responsibilities accountabilities and authorities) 1.04 Competency and Capabilities 1.05 Leadership and Commitment 1.06 Stakeholder consultation and participation 1.07 Information and communication management 1.08 Organisational Commitment to Occupational health and wellbeing 1.09 Change management 1.10 Legislative (and other) compliance 110 Section 1: Organisational Commitment and structure

109. Five Star Audit 2017 Specification Model 2.01 Status assessment (including benchmarking) 2.02 Occupational health and safety objectives 2.03 Occupational Health and safety programmes and planning 2.04 Competence and capability (planning) 2.05 Strategic Leadership 2.06 Provision of Resources and Support 2.07 Risk management, risk profiling and operational control 2.08 Occupational Health and Wellbeing 2.09 Emergency Incident and post-event recovery planning 111 Section 2: Strategic Planning

110. Five Star Audit 2017 Specification Model 2.10 Procurement, outsourcing and contractor approval 2.11 Planning for a positive health and safety culture 112 Section 2: Strategic and planning (continued)

111. Five Star Audit 2017 Specification Model 3.01 Identification of hazards, opportunities and assessment of risk 3.02 Safe operating procedures (safe systems of work) 3.03 Management and Control of Work equipment 3.04 Manual handling 3.05 Management and Control of Workstation ergonomics (including DSE) 3.06 Workplace Welfare (housekeeping, storage, welfare facilities,etc ) 3.07 Management of Occupational Road Risk (including traffic and transport management) 3.08 Permit to work and safe isolation systems 3.09 Working at Height 113 Section 3: Implementation and operation

112. Five Star Audit 2017 Specification Model 3.10 Lifting equipment 3.11 Pressure systems 3.12 Control of hazardous substances (including biological agents) 3.13 Management and control of asbestos 3.14 Management and control of Electrical hazards 3.15 Management and control of noise 3.16 Management and control of vibration 3.17 PPE 3.18 Competence and capability (implementation) 114 Section 3: Implementation and operation

113. Five Star Audit 2017 Specification Model 3.19 Management and control of psychosocial hazards 3.20 Implementing a positive health and safety culture 3.21 Implementing emergency incident and post-event recovery controls 3.22 Fire safety management (preventive and protective controls) 115 Section 3: Implementation and operation

114. Five Star Audit 2017 Specification Model 4.01 Monitoring of Occupational health and safety objectives 4.02 Monitoring of Occupational health and safety programmes and plan Pro active measurement 4.03 Auditing (internal and external) 4.04 Monitoring Systems (including inspection, risk assessment review, sampling, surveys,) 4.05 Evaluation of Legislative (and other) compliance 4.06 Health surveillance Monitoring 4.07 Monitoring of contractors, suppliers and outsourced functions 4.08 Evaluation of effectiveness of information and communication management 116 Section 4: Performance evaluation

115. Five Star Audit 2017 Specification Model Reactive measurement (lagging indicators) 4.09 Accident, incident, near miss report and investigation monitoring 4.10 Ill health and absenteeism monitoring 4.11 Loss/damage analysis 4.12 Non Conformance Monitoring and Evaluation 117 Section 4 continued: Performance evaluation

116. Five Star Audit 2017 Specification Model 5.01 Senior (top) management review process 5.02 Review of effectiveness of leadership resources and support 5.03 Continual improvement (evaluation and planning) 5.04 Corporate and social responsibility 118 Section 5 : Senior (top) Management Review and Continual Improvement

117. Five Star Audits Upon completion of the audit process, a detailed report is prepared by the auditor and will be issued within 28 days. The report content will include: Executive summary (including graphical performance indicators) Overall star grading and sectional scoring Observations Recommendations for Improvement Action planning tables.​ 119 Audit report

118. Integrated SHE Five Star Audit An integrated best practice audit evolving from our two existing Five Star products. It will audit against both OH&S and environmental best practice by looking at the common areas and also the specifics of each subject. Why have we developed this model? There are many synergies and alignment within the two disciplines Many companies now have (or are moving toward) integrated management systems In many organisations, the same person oversees the two disciplines (SHE Advisor / Manager) We are looking to offer a cost effective way of measuring performance against best practice. 120

119. Fire Safety Management Audit Based upon bespoke audit developed for Royal Shakespeare Company Unquantified, Consultative, Not part of FSA range Based upon PDCA management model Legislative and sector requirements, best practice elements Can be tailored to incorporate client system requirements Report inclusive of recommendations Focus on fire management systems and preventive / protective controls Already received support requests from UK and international clients 121

120. 122 Q&A

121. Document title When you’re working to do the right thing, we help you do it the right way.

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