A party seeking to restrict another's commercial activities must consider whether such terms are normal in similar, factual and contractual circumstances.
Hampshire County Council’s recent £1.4 million fine, following a serious injury to a six-year-old girl, demonstrates the increased risk of substantial fines for health and safety breaches. The fine also emphasises the need for all organisations to ensure that they adequately assess and mitigate risks to the safety of members of the public.
Almost all organisations understand that they have a duty to protect the health and safety of their employees. However, under section 3(1) of the Health and Safety at Work Act (HSWA) 1974, organisations are also obligated to avoid exposing members of the public to health and safety risks through the conduct of their business. Hampshire County Council breached this obligation.
Whilst the case involves a local authority, the principles apply to all organisations. Housing providers, for example, must mitigate the risks to members of the public who decide to use the playparks, benches and bike shelters on their premises.
As we discussed in our previous e-briefing, 'Sentencing safety-related offences within the health and social care sector', the level of fines for health and safety offences has increased significantly since the Health and Safety Sentencing Guidelines came into force. Earlier this year, BUPA Care Homes Limited was fined £1.5m on appeal also concerning a breach of section 3(1) of the HSWA 1974.
A six-year-old girl was visiting Lymington in Hampshire with her family when she climbed onto a hinged iron bollard. The 69kg bollard fell to the ground and pulled the young girl with it resulting in life-changing head injuries. Until she matures, it will not be possible to identify the extent of her injuries.
It was clear that the bollard had been damaged and was inadequately secured. The Health and Safety Executive’s investigation demonstrated that the Council had received a report regarding the state of the bollard before the incident. Yet, the monthly inspections by the highways department’s personnel did not pick up on the issue. The HSE found that the highways personnel received inadequate and, in some cases, misleading training, guidance and information in order to assist them in carrying out ad-hoc and routine inspections.
Hampshire County Council was found guilty after a trial of breaching section 3(1) of HSWA 1974 and was fined £1.4m and ordered to pay full costs of £130,632.
It is important to ensure that risk assessments are in place for any equipment, including street furniture, that the public could use. It is also important that suitable inspection programmes are in place that account for each piece of equipment’s risks, location and frequency of use.
An inspection routine alone is unlikely to be enough. Organisations should ensure that inspections are sufficient, and inspectors and maintenance staff are appropriately trained and guided as to how to carry out the inspections. A clear mechanism for reporting, and more importantly rectifying, faults should also be put in place.
If an incident occurs, you must seek legal advice as soon as possible to ensure a suitable case strategy can be formulated.
For help with any issues raised in this briefing, please contact Lorna Kenyon.
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