Sederunt

B Davies D Mann D Devey S Chisholm A Johnston J Goddard J Anderson K Paterson E Stobbie G Dick S Elder M Ritchie T Mellon A Thomson B Stainton B McDonnell S Dunn

Apologies:

N Docherty R Lacey J Branagen K McDonnell A Milne A Stark

1. Chairperson: Kirsten Paterson

Kirsten opened the meeting at 7.30pm and welcomed all present to the 20^th meeting of the District being held at the new venue of the Business Gateway. Members and guests were informed of the car parking arrangements, fire alarm and evacuation procedure. Kirsten also asked that all attending should remember to fill in the attendance register. The format of the meeting was outlined as District business first, and then a short break for tea/coffee followed by the guest speaker for the evening. She stressed that an important function of the meeting was to network and urged members to use this opportunity accordingly.

2. Minutes of the previous meeting

Dave Devey highlighted a post-meeting note. At the April meeting the February AGM meeting minutes were erroneously passed. To rectify this Dave Devey asked if there were any objections to the minutes of the meeting held in November 2003. None were raised. Acceptance of the minutes was proposed by Dave Devey and seconded by Barry Davies. Similarly, there were no objections raised regarding the minutes of the last meeting held in April 2004. Acceptance was proposed by Kirsten Paterson and seconded by Dick Mann.

3. Correspondence

Letter received from IOSH HQ outlining plans to update membership register proposing a secure on-line service for members to update contact details. You are requested to advise IOSH if you believe the contact details they hold are out of date. Dave Devey, also asked for any changes in e-mail and postal addresses to be detailed on the attendance register in order that minutes can be sent.

4. Any other business: none

5. Guest Speaker: Robert Fife, Anderson Strathearn

Avoiding the “unwelcome” attentions of the HSE,

Kirsten introduced Robert Fife, Head of Dispute Resolution for Anderson Strathearn, a barrister with vast experience of dispute issues who is also a part time sheriff, which gives him an insight into both sides of cases.

Robert opened his talk by explaining that although the title was “Avoiding the Unwelcome Attentions of the HSE”, it was actually good practice to maintain links with them, seek advice and information from them and work with them.

It would however be a totally different experience if things go wrong and you find yourself on the wrong end of an investigation pending possible legal proceedings.

HSE/HSC

Health and Safety Commission Strategic Plan

Revitalising H&S

2004/2005 Plan - short term targets set to reduce:
Fatal and major injuries by 1%
Over 3day injuries by 3%
Ill health by 1%

2010 Plan – longer term targets
Fatal and major injuries by 10%
Over 3day injuries by 30%
Ill health by 20%

Very demanding Targets for the future have been identified.

Priority areas identified, still biggest area for improvement is Falls from Height and fundamentals of any safety management system remains adequate RISK ASSESSMENT. He noted that HSE were also interested in any lack of traffic planning.

Commission Enforcement Policy

“..enforcing authorities should identify and prosecute individuals… consider the management chain and the role played by individual directors and managers… take action against them where … the offence was committed with their consent or connivance…. Where appropriate, enforcing authorities should seek disqualification of directors under the Companies Directors Disqualification Act 1986”

HSE is getting tough on individuals and looking to the top of the tree within companies.

Statutory Regulation

Corporate Killing

An area to be well aware off, presently not progressing very quickly however public pressure is demanding some action. Ministers very cautious as to the extent of culpability particularly when considering the legal implications of “controlling minds”. Some time to go yet and delays being encountered, however public awareness is being raised, court decisions will have further influence and if the media become interested then more pressure will be put on government to respond. However, in Scotland a charge of culpable homicide can still be pursued under common law in serious cases.

Overview of cases

The following cases were outlined and sentencing policy discussed.

Transco – Larkhall, important prosecution, reasonable forseeability, but a very complicated case and not yet tried.
Hatfield – recent decision to throw out some charges against individuals, HSE wants this to remain high profile case and still a raft of individuals on charges
Morrison Construction – Perth Prison, prosecution against contractor, PS, designer, CDM case collapsed due to poor Crown prosecution knowledge of regulations. Contractor fined £3000.00 on lesser breach of safety regulations.
Barr Limited – Fatality collapse of concrete slabs. Designer prosecuted due to involvement identified from a phone call, case eventually failed against individual but went against company fined £100,000.00.
Ellis, a geography teacher, jailed for 1 year as a result of the death of a 10 year old child in his care while on a field trip.

Current trends on fines

£2m Ladbrook Grove
£5000,000 B&Q, Forklift crushed customer
£400,000 Jarvis, could but companies out of business

If large companies are taken to task then more media exposure and more impact therefore more companies take notice. Robert did point out that a high profile prosecution will not necessarily result in a high profile fine.

Key Factors: Management

Management Failure
Systems failure
Risk Assessments, completion and review
Method Statements
Collective responsibility to see that the risk assessments are done.

Any shortcomings in these records leave the employer exposed. Unless managers go out and look what is actually happening for themselves they are unlikely to be adequately monitoring the effectiveness of their policies.

Key Factors: Legal

Conduct of HSE
Conduct of Procurator Fiscal/Crown Office
Delay in instigating and conducting proceedings due to resource shortages in HSE, Crown Office and Procurator Fiscals
Competency and relevancy of charges
Definitions of “an undertaking” and “reasonable” unclear

All these factors have bearing on whether the case is taken to court, whether it is successful and any sentencing penalty. Robert’s recommendation if responding to HSE after a serious incident was to contest definitions and evidence wherever possible. He also recommended that in such circumstances potential managerial defendants should refuse to be interviewed by HSE and state that their lawyers had advised them not to answer questions.

Stress: Criminal Law

Robert mentioned stress as an example of HSE’s proactive enforcement and summarised his advice to avoid notices.

West Dorset NHS Trust, Improvement Notice
Assess levels of stress
Introduce Stress Reduction Programme

Summary and Conclusions

HSE Agenda: Public Interest/Risk Assessment
Robust H&S systems are essential
Test systems in practice and check they are being followed
Risk Assessments, reviewed + updated + training records all form essential defences

6. Vote of thanks

Barry Davies gave a vote of thanks on behalf of the District and Robert was then presented with a gift as a token of appreciation from the district.

7. Steve Dunn of P&K Council addressed the meeting to point out that HSE were not the only enforcing authority who might visit, depending on the nature of the business. Steve noted that a greater number of premises were under LA enforcement for health and safety and that these included some with significant risks such as large warehouses.

The meeting closed at 21.20 and the next one is arranged for Thursday 4^th November.

8. Next meeting

Thursday 4 November 2004 - Perth & Kinross Business Gateway at 7:30pm

Improving Health & Safety Performance Through Investigation: David Stephen and David Cassells: HSE Edinburgh

Dave Devey Kirsten Paterson

Secretary Chair