LOSS CAUSATION AND INCIDENT INVESTIGATION - ELEMENT A2

LIMITATIONS These results show that Birds findings are not uniform throughout industry and in fact differ from industry to industry. This may be mostly due to the range of risk involved, but there could also be cultural differences, and variances in the level of reporting. The accident ratio studies may not necessarily show the extent of the loss to the organisation. For example, the property damage category may include extensive damage to large plant and equipment. Also, shown from Birds and HSEs examples, there are no universally agreed definitions of each subset of accident type. Statistical analysis of loss events relies on large numbers, comparable work and worker skills over the measured time-frame, to be effective. In smaller organisations, the first recorded accident may be the top event, i.e. fatality or major injury. Near miss reporting may mean different things to different people, for example, an office employee who enters a production plant will have a higher perception of danger than a worker who has been at work there for several years.

Domino and multi-causality theories

THE DOMINO THEORY HW Heinrich, an American safety engineer, proposed one of the first coherent theories of accident causation in the mid 1920s. He suggested that accidents were not acts of God but were caused by the failures of people. His domino theory suggested that the series of events, which led to an injury or some other loss, were a succession of events which followed a logical pattern.

Figure A2-7: Accident causation domino.

Source: H.W. Heinrich.

Further research by the International Loss Control Institute (ILCI) into accident causation led them to put forward a modified domino theory.

Figure A2-8: Accident causation domino.

Source: Frank Bird - ILCI.

Considering each stage of the Frank Bird - ILCI domino separately: "Loss" This is the consequence of the accident and can be measured in terms of people (injuries), property (damage) or loss to the process (failed telecommunication) or the potential for any of these (near miss) and hence loss of profit. "Event (accident or incident)" The event producing the loss involving contact with a substance or source of energy above the threshold limits of the body or structure. "Immediate (direct) causes" These are the substandard (unsafe) acts (e.g. using tools and equipment for tasks they were not designed to do) and substandard (unsafe) conditions (e.g. a trailing telephone cable in an office) which gives rise to an accident. These are symptoms which can be observed. Whilst these symptoms cannot be ignored, action

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ELEMENT A4 - IDENTIFYING HAZARDS, ASSESSING AND EVALUATING RISKS

The content of a training course for staff that is to assist in carrying out risk assessments should include: Legal requirements with respect to risk assessment. Process of identifying hazards and evaluating risks. Identification and selection of appropriate control measures. Awareness of the individual's own limitations and the occasions when specialist assistance might be required. Accessing sources of information such as ACOPs and in-house information including accident records. Report-writing skills. Interpretation of regulations and standards. Means available for disseminating the outcomes of the assessment. DIFFERENCES BETWEEN, AND PRINCIPLES OF, QUALITATIVE, SEMI-QUANTITATIVE AND QUANTITATIVE ASSESSMENTS Qualitative The qualitative method of risk assessment can generally be considered to not involve equations based on numbers to evaluate risk. Using a qualitative approach, a cable trailing in a walkway used by infirm older patients may be evaluated as being a high risk, because it is felt that somebody is bound to trip over it and the consequences would be severe. This is a useful, straightforward approach; though it is a relatively subjective method it can easily lead management to take action to control the risk, which is the purpose of risk assessments. A qualitative approach to risk assessment is provided in the guidance to the Manual Handling Operations Regulations (MHOR) 1992. It requires the consideration of factors that lead to a manual handling hazard and the subsequent evaluation of the risk in terms of low, medium and high.

Figure A4-9: Qualitative approach, in manual handling risk assessment.

Source: HSE, L23.

Semi-quantitative The semi-quantitative method is half way between the simplest approach, which uses qualitative methods, and the quantitative approach, which uses probability statistics. Different people may have a different perception of risk, as a result of training, life experiences and background. Semi-quantitative methods try to establish parameters that ensure a more consistent approach to risk rating and attempt to overcome individual differences. Risk can be rated according to the probability (likelihood) and severity (consequence) of harm resulting from a hazard. Thus, risk rating = Probability (likelihood) x Severity (consequence). Where the: Probability (likelihood): How likely that this harm will occur. Severity (consequence): The degree or amount of any resultant harm. Risk rating: The level of the remaining risk after current controls have been taken into account.
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ELEMENT A8 - PRINCIPLES OF HEALTH AND SAFETY LAW

on the prosecution bringing sufficient evidence to convince the court of the non-compliance. This does not take away the over-all burden of proof for the prosecution to establish the case beyond reasonable doubt, in relation to the facts of the case, but this will clearly depend on whether the accused has the ability to illustrate that compliance existed. In cases of gross negligence manslaughter the standard criminal doctrine of proving a guilty act and guilty mind applies.

A8.2 - Absolute and qualified duties

Concept of absolute and qualified duties
Civil and criminal law recognise that a person accused of wrong doing should be expected to have acted in a particular way and be expected to put effort into doing so. The level of expectation varies depending on the circumstances, in particular how defined or specific the law is in directing the person to act. This will often depend on how general or specific the legal requirement is or how critical it is to society that the person acts in a defined way. The most demanding duties are absolute and create the strictest expectation; they should only be applied where the duty created is so important and applicable that it is appropriate that in all circumstances it be met. Where these circumstances are not appropriate a qualified duty may be more suitable.

Definition of the terms

ABSOLUTE Absolute duties require compliance regardless of technical considerations or cost (see - John Summers and Sons v Frost [1955] in the following section). Absolute duties are expressed by using words such as will, must and shall. It is an absolute duty to undertake risk assessments under the Management of Health and Safety at Work Regulations (MHSWR) 1999. Regulation 3 of MHSWR 1999 requires: 1) Every employer shall make a suitable and sufficient assessment of: a) The risks to the health and safety of his employees to which they are exposed whilst they are at work. b) The risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking, for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions. John Summers and Sons v Frost 1955 All ER 870 AC.740, [F.A.1937 S14 (1), F.A.1961 S14 (1)] Securely fenced (absolute duty) Facts: Mr Frost was injured whilst using a grinding wheel. His thumb was caught between the small (1cm) gap between the guard and the grinding wheel. Although the wheel was partially guarded, section 14 of the Factories Act imposed an absolute duty to guard the dangerous parts of machinery. Decision: The House of Lords ruled that there had been a breach of statutory duty. Relevance: The obligation to guard securely those parts of a machine which are dangerous must be fulfilled in such a manner, as to afford complete protection to the careless or inattentive worker as well as the meticulous, careful one. Moreover, the dangerous part is securely fenced if and only if the presence of the fence makes it no longer dangerous. The duty was to provide fencing which absolutely prevented any part of any person working on the premises from coming into contact with any dangerous part of the machine. This illustrates the literal interpretation of statutes that the courts are required to make - if the effect of this is to make the machine unusable then so be it. PRACTICABLE Where a measure to meet a practicable duty is technically possible, in the light of current knowledge and invention, then it must be taken (see Adsett v KandL Steelfounders and Engineers Ltd [1953] - in the following section). Practicable requires the duty-holder to keep up with developing technology and current knowledge and invention and not be too slow to employ it. Practicable is a stricter standard than that of reasonably practicable and may require the duty-holder to eliminate cost as a consideration (see - Marshall v Gotham and Co Ltd [1954] in the following section).
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CIVIL LAW - ELEMENT A10

A10.1 - Common law duties

Principles of tort (delict - in Scottish law) of negligence
THE TERM NEGLIGENCE The tort of negligence (delict in Scotland) is the most common cause of civil action for work related injury. Negligence was defined in the case of Blyth v Birmingham Waterworks 1856. Here the claimant alleged that the water company had failed in their duty of care by laying a water pipe at too shallow a depth in the ground, which, as a result, became frozen in winter. Negligence is the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.
Figure A10-1: Definition of negligence. Source: Baron Alderson, Blyth v Birmingham Waterworks [1856].

Thus, negligence is failing to do something a reasonable person would do or doing something that a reasonable person would not do (i.e. an act or omission) in the same circumstances. The man on the Clapham omnibus is often cited as representing the reasonable person. Ultimately it is the Judge who will decide what is reasonable, based on the facts of the case. The Judge will take into account precedents established in prior cases. Thus the law of torts relating to negligence is being continually developed with old cases being applied to new situations. The categories of negligence are never closed. In effect, the standard of reasonableness changes with the changing morals and attitudes of Society as a whole.
Figure A10-2: Development of the term negligence. Source: Lord Macmillan said in Donoghue v Stevenson [1932].

In order to prove negligence, the claimant must show that: The defendant owed the claimant a duty of care. The defendant was in breach of that duty. That the claimant had suffered an actionable loss as a result of the breach. DUTY OF CARE OWED Thus, before negligence is proved, it must first be established that a duty of care is owed by the defendant to the claimant. Donaghue v Stevenson (1932) helped establish a principle of care that was owed, called the neighbour principle. "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then, in law, is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question.
Figure A10-3: The neighbour principle. Source: Lord Atkin.

BREACH OF THE DUTY OF CARE THROUGH NEGLIGENCE A breach of the duty of care is required when proving negligence. This depends on the standards of care that may be expected from the "reasonable person". CAUSAL LINK BETWEEN THE BREACH AND THE LOSS SUFFERED The injury (loss) was a result of the breach. The injury or loss must be as a consequence of the breach. Generally, the harm must be "reasonably foreseeable". The breach of duty must be connected to the loss, for example, a claimant may claim that the noise level in a workplace caused them to conduct a manual handling task badly and injure their back. This may be considered by the court hearing the case to be too remote a link. In addition, it is necessary to prove that the loss suffered was not too remote from the breach of duty. This is particularly applicable to situations where a claimant claims for what may be seen as consequential loss. Whilst a court can confirm compensation for damages directly arising from the breach of duty this does not generally extend to more remote consequential loss, for example, missing a wedding because of injury caused. Concept of res ipsa loquitor Normally the burden of establishing that the defendant has broken the duty of care and there was a link to the loss suffered rests with the claimant. In some instances the facts that the claimant establishes are such that the thing may speak for itself - res ipsa loquitur. In this situation, it is made obvious to the court that there is negligence by the expression of the facts of the case alone. In this case, the claimant does not have to offer further evidence and it then remains for the defendant to establish that the damage occurred without their negligence. In Cassidy v Ministry of Health (1951), for example, the Court of Appeal was of the view that the very fact that the claimant emerged from treatment in a hospital with a paralysed hand raised a presumption that the
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