Health and Safety Audit and

Legislative Update
Thursday 21st September 2017

Glasgow
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
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

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British Safety Council

An overview of British Safety Council’s policy and

engagement work
Who are we
• 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
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How we support

Membership

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Education qualifications
Guidance
Support Audit and consultancy

Policy and opinion

Publications, awards
and events

www.britsafe.org/corporatebrochure
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Events and engagement
• Conferences and workshops
• Award events
• Exhibitions
• Partner events
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• Sector interest groups
- Construction
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- Energy and utilities
- Transport
- Stadia / Event Management
- Healthcare
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.

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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

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BSC Involvement in Recent
Key Health and Safety /
Regulatory changes

1 Löftstedt update

2 Fee for intervention

3 Temple review of HSE

Sentencing proposals for health and safety

4 offences

5 CDM 2015

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Council.
ISO 45001: A new international standard for
OH&S management systems

Dave Parr
Head of Audit and Technical Services
British Safety Council
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

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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.

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ISO 45001

Development of the new standard

• 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.)

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Annex SL - A high level structure
for all future ISO standards
A new High Level Structure (HLS) 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)

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Current structure ISO 45001
(ISO/DIS 45001.2)

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

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Structure of ISO/DIS 45001.2
 ISO/DIS 45001.2

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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

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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

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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

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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.

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A key requirement of Annex SL:
Context of Organisation

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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

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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

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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”.

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Leadership

“The first rule of leadership. Everything is your fault !”

A Bugs Life : Pixar films

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“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)

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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

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Current structure ISO 45001
(ISO/DIS 45001.2)

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)

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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

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Current structure ISO 45001
(ISO/DIS 45001.2)

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

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Current structure ISO 45001
(ISO/DIS 45001.2)

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

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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

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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

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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.

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ISO 45001
Implementation timescales

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 ?
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ISO/DIS 45001.2

BALLOT OF NATIONAL BODIES : July 2017

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

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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
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ISO 45001 WORKSHOPS : November
ISO 4501 WEBINARS : December
Gap Analysis Tool
41
Health & Safety Update

Steve Love, QC
21st September 2017
 TOPICS

1. Sentencing in Scotland
2. Notice Appeals
3. D Geddes (Contractors)
Limited
 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
 Sentencing
• 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
• 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…”
 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.”
 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
 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…”
 2016 Sentencing Guidelines
• In force in England & Wales 1st 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…)
 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 1/3rd reduction for early guilty plea
Sentencing
SENTENCING
 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 ???
SENTENCING
SENTENCING
SENTENCING
 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.”
 SENTENCING
• Individuals

• U

• Up to 2 years imprisonment
• Upward trend of director prosecution (not employees)
Longannet PS
 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
 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)
 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
 SPG Ltd v HMA

• Scottish Power Generation Ltd v HMA [2016] HCJAC

99; 2016 SLT 1296 per LJG (Carloway):
“[35]…guidelines 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.”
 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.”
 SPG Ltd v HMA

•Appeal allowed:
•Fine of £1.2M substituted (reduced from £1.5M)
• 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”
• 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.
 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…
 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
 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
 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?
 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
 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
 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.”
 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.’”
 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?”
 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…”
 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.”
Captain FPSO
 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
 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
 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
 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”
 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.”
 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?
 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.
 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.
 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.
 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.”
 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.”
 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?
• QUESTIONS?
 Contact
Compass Chambers
Parliament House
Edinburgh
EH1 1RF
DX 549302, Edinburgh 36
LP 3, Edinburgh 10
www.compasschambers.com

Steve Love Gavin Herd

QC Practice Manager
M: 07920 810967 Phone: 0131 260 5648
E: steve.love@compasschambers.com Fax: 0131 225 3642
gavin.herd@compasschambers.com
Best Practice Auditing
BSC Five Star Model

Rob Pugh
Senior Audit Consultant
British Safety Council
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
Audit progression
New Products 2017

Five Star Process Safety Audit : Mid October

Fire Safety Management Audit : September 25th

100
Five Star Audits

101
Five Star (best practice)
audit process
Features/benefits:
• 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
Five Star audit specification

Development factors

• 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
FSA Specification 2017

Organisational
commitment and
structure

Senior (top)
Management
review and continual
improvement Strategic
Five Best planning
Practice
Indicators

Performance Implementation
evaluation and operation

104
FSA Specification 2016

Best practice indicators

BPI 1 : Leadership

BPI 2 : Stakeholder Engagement

BPI 3 : Risk Management

BPI 4 : Organisational Health and Safety Culture

BPI 5 : Continual Improvement

105
FSA Specification 2016

Best practice indicators

BPI 1 : Leadership

BPI 2 : Stakeholder Participation

BPI 3 : Risk Management

BPI 4 : Organisational Health and Safety Culture

BPI 5 : Continual Improvement

106
Draft Example BPI Graph

100%
BPI
Indicative level of best practice 92%
90%

80%

70%

60%

50%
95.00%
40% 80.00%
75.00%
30% 60.00%
Leadership Stakeholder 50.00%
20% Participation Risk Management Safety culture
Continual
10% Improvement

0%

107
Five Star Audit Specification Model

Sectional headings

Section 5 Section 1

Senior (Top) Organisational

Management and Commitment
Review and Structure

500 points 750 points

Section 4 Section 2

Performance Evaluation Strategic Planning

1125 points 1125 points

Section 3

Implementatio
n and
Operation

1500 points

108
Five Star Audits

Scoring and grading

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)
Five Star Audit 2017
Specification Model
Section 1: Organisational Commitment and structure

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
Five Star Audit 2017
Specification Model
Section 2: Strategic Planning

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
Five Star Audit 2017
Specification Model

Section 2: Strategic and planning (continued)

2.10 Procurement, outsourcing and contractor approval

2.11 Planning for a positive health and safety culture

112
Five Star Audit 2017
Specification Model
Section 3: Implementation and operation
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
Five Star Audit 2017
Specification Model
Section 3: Implementation and operation

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
Five Star Audit 2017
Specification Model
Section 3: Implementation and operation

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
Five Star Audit 2017
Specification Model
Section 4: Performance evaluation

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
Five Star Audit 2017
Specification Model
Section 4 continued: Performance evaluation

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
Five Star Audit 2017
Specification Model
Section 5 : Senior (top) Management Review and Continual
Improvement
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
Five Star Audits

Audit report

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
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
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
Q&A
122
When you’re working to do the right thing,
we help you do it the right way.
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