Presentation to Crosscare - Health and Safety Law - Occupier’s Liability

1. Presentation to Crosscare - Health and Safety Law- Occupier’s Liability A&L Goodbody 11 March 2013

2. Running Order • Nine core obligations as “Employer” • Recent Court cases • Real life case studies from Crosscare’s main Sectors • Advice on how to deal with HSA investigations and prosecutions • Duties and liabilities as an occupier

3. Your legal obligations as “Employer” • Safety Statement • Hazard Identification and Risk Assessment • Training • Maintaining a safe workplace - www.hsa.ie • Safety representative

4. Your legal obligations as “Employer” • Consultation/Employee responsibilities • Physical and mental health risks • Working time • Record keeping • Some practical tips

5. Recent Health & Safety Caselaw • HSA v Wicklow County Council • HSA is an active prosecutor • DPP v PJ Carey Contractors • Defence for the good and conscientious employer

6. Recent Health & Safety Caselaw • DPP v SIAC and Ferrovial • Expert evidence indicating exactly what failures are alleged should be before the court • Prosecution cannot simply rely on the fact of a death of a death or injury to obtain a conviction • Warcaba v Industrial Temps, Dublin Airport Authority and Ryanair • Standards set in training should be followed in practice

7. Catering Services • Slips, trips and falls • Kitchen safety – knives, burns, scalds • Fire Safety • Electrical faults/cooking • Effective fire alarms • Cleaning products

8. Catering Case Study – Trip Case • Inspection of restaurant identified trip hazards • Improvement Notice served • Follow up inspection 7 months later • Cable trailing across a step • Cluttered storage room • Successful prosecution • Fine of Stg£1,000 • Plus costs of prosecution

9. Catering Case Study – Slip Case • Kitchen worker suffered a fractured skull and is unlikely to work again • Kitchen floor was very slippery and safety mats were wholly ineffective • Successful prosecution • Stg£36,000 in fines and costs • Improvement Notice served requiring complete replacement of the floor

10. Catering Case Study – Scald Case • Catering Assistant suffered burns on her back and on her feet • Emptying a deep fat fryer and plastic bucket melted • Investigation found • No safe system of work in place • Poor level of training and supervision • Successful Prosecution • Fine of Stg£16,000 • Costs of Stg£9,500

11. Accommodation Services • Manual Handling • Ongoing High Court case • Hotel maid claims heavy workload caused injury • Biological hazards and sharps, e.g. syringes • Fire Safety

12. Healthcare/Counselling Services • Acute situations • Care for vulnerable patients • Key Risks • Assault and verbal abuse • Disorder and abuse from members of the public trying to access services • Physical attack – individuals under the influence of alcohol or drugs, or those with mental illness

13. Healthcare Case Study • Elderly patient suffered serious injuries after fall from first floor balcony of private room and died 2 days later • The Court found that the hospital: • failed to assess risk of patients falling from balconies • failed to take adequate measures to control this risk • Successful prosecution • Fine of Stg£100,000 • Plus costs of prosecution (almost £30,000)

14. HSA – Inspections and Investigations • Powers of Inspection • Investigations • Statutory Notices

15. HSA Prosecutions • How can Health & Safety law really bite? • Criminal Prosecutions • Penalties • Onus of Proof is on the employer • Personal Criminal Liability for Directors

16. HSA Investigations and Prosecutions Do: • Check HSA inspector’s authorisation • Call your solicitors • Keep a record of documents examined • Consider exercising right to silence

17. HSA Investigations and Prosecutions Do: • Consider separate legal representation? • Stop the infringement • Be aware that the Gardaí will usually investigate any serious accident also

18. HSA Investigations and Prosecution Don’ts: • Do not obstruct HSA inspectors • Do not volunteer information or have informal “chats” • Do not hide or destroy documents • Do not sign anything without legal advice

19. Occupier’s Liability • How does the liability of the owners and occupiers of buildings differ from the general rules on negligence? • This is distinct from the duties of Crosscare as an employer under Health & Safety law.

20. Types of Third Party Entrants • Visitors • “Recreational Users” • Trespassers • Criminal Entrants

21. 1. Visitors • Who is a visitor? • What duty is owed to a visitor? • How may an occupier exclude or limit this exposure? • Notices • Must be “reasonable in all the circumstances” • Minimum level of duty • How does this affect Crosscare?

22. 2. “Recreational Users” • Who is a “recreational user”? • What duty is owed to a “recreational user”? • How does this differ from the duty owed to a visitor? • What are “recreational activities”? • How does this affect Crosscare?

23. 3. Trespassers • Who is a trespasser? • Is any duty owed to a trespasser? • Deterrent measures • Retributive measures • Why should any duty be owed to trespassers? • How does this differ from the duty owed to a “recreational user”?

24. 3. Trespassers Contd. • Courts show some leniency: • Frequent trespassers • Child trespassers • Definition of “reckless disregard” • Nuisance near roads • Can I use force in the case of trespassers? • How does this affect Crosscare?

25. 4. Criminal Entrants • No need for definition of criminal entrant! • Is any duty owed to criminal entrants? • Why so? • How is this duty to be balanced against the right to self-defence and defence of Crosscare property?

26. Practical Application To Crosscare Premises • Disgruntled clients • Unauthorised car parkers • How should Crosscare interact with the Gardaí? • How should Crosscare deal with the press?