Posted By Jasonjg
Good morning all

I am just about wrapping up and checking my assignment now but have one very very last question.


I am trying to establish where a member of the public could claim breach of stat duty when exposed to a disease that originated from a building even though they had not entered that building.

I have the negligence side explained and also the crinimal side but this one is a tad more difficult as I am finding it hard to believe that Reg 3 of the management regs is the only stat that could even be related to such an incident.

Problem

I seem to only see reference to employees in my short version of COSHH reg 6 so maybe this has been overlooked by me not having the full regs but I hope not. Anyway as the wording of the statute has to be very clear, I was wondering if COSHH was in fact a more difficult stat duty to prove when you are a member of the public.

I think they could try to argue reg 3 management regs but is this going to be weak where there are two defendants? i.e. landlord and tenant taking into account the breach must have led to the harm also. Actually to correct myself here, they probably would only go after the landlord here.

I had originally ruled out Occupiers liability as they were not invitees and never on the premises. This raises a whole lot of other law questions but not for the purpose of my assignment so I will just ponder on them until I need further understanding.

Now I am hoping that this is enough for me to at least note those points but just for curiosity sake I am puzzled as to what would be the best statutory duty in similar circumstances.

Do I really need to read the full COSHH Regs because my simplified version has missed the duty to others persons? Or is this one of the hidden agendas the assignment wanted me to get stumped on for a while?

Anyway thanks for any tips even if it is a link to the full regs so I can check fully.

Jason

Posted By Jasonjg
Similar circumstances however this time the persons are not on the site.

This is an assignment where I have to explain Criminal and civil liabilities concerning deceased employee and ill but not deceased contractor and members of public.

The details are my company (A) had leased offices from (B) then legionella outbreak after a month.

Obviously, I am to stress the strengths and weakness in each case & each liability. Some room for error as I am not a solicitor but I do not want to swing it through hoping I have scored enough marks cos it is all pretty and nice. I think I have done enough but am left curious about this last point.

Like I said, I have most of this written up now and am just curious as to this last point before conclusions.

I have to be careful so as I am not getting the work done for me, however with this particular assignment, I got really nosey as to the ins and outs of everything which has made this one much harder than the rest bearing in mind that I only have 2000 words assigned to this part as the rest is concerning plan and L8.

I seriously will be glad to see the back of it that’s for sure but one thing it has done, it has been drilled it into my head.

Posted By Peter Longworth
Does strict liability come into this as well (Rylands v Fletcher)or am I completely off track.

Posted By Jasonjg
Thats the stuff,

Thanks Peter

I got blinded for a while and for love and money could not see that text. It was in my version also doh.

Anyway I just have to make that last few comments then it done, posted and forgot about (thank God).

Thanks again to those who posted, I had covered most of the other stuff i.e. manslaughter, strict liability etc. Not a lot of detail but it was briefly covered. All in all it has made me a lot more cautious about thelegal issues thats for sure.

Happy Jay out

Posted By Adrian Watson
Jason,

COSHH does apply to biological agents; Regulation 2(1) Refers. The question is whether the Regulations aim to protect persons who are not an employee; Regulation 3(1) makes it clear that they apply to persons affected by the work carried out by the employer. Consequentially, compensation is payable to a member of the public for any losses resulting from an injury (illness) caused by the employer’s breach of the regulations.

Regards Adrian

Posted By Robert K Lewis
jasonjg

I was not very clear in my wording and should have included section 4 Hasawa also - Remember section 47 excludes civil rights of action in these clauses. We would need to establish a specific statutory duty under the relevant regulations to follow the tests laid down.

COSHH might well prove profitable but again I think most lawyers will prefer the route of a negligence claim as these are less fraught. The amount of materials available on legionella might make a judge look more favourably at a statutory duty proposition but every case depends on its merits on the day in court.

Yes the existence of a criminal conviction under Sections 3&4 does not preclude a claim in breach of statutory duty but it is unlikely to be a favoured option in all cases.

There is an underlying problem here that I touched on above in my posting. The scenario was intended to be reasonably straightforward BUT the boundaries are not well set and this leaves the way open to a wide variety of issues - including the H&S Due diligence which was not, I suspect contemplated by the question setter - mainly because these are regarded as financial concerns beyond the remit of the practitioner. However if we assert a chartered status we must recognise that these issues are part of our bread and butter activities. This in turn places responsibility on those setting questions to be very precise in setting scenarios, otherwise the student can be left wallowing in the morass of possible outcomes.

Bob

Posted By Jasonjg
Robert you have summed my situation up perfectly.

I had to contact my tutor several times concerning this assignment because at each turn the possibilities were expanding and expanding and therefore I have constantly been pondering on the little details. Not seeing beyond the wood and the trees.

When doing such a thing and then to be expected to argue the points to a certain degree I suspected that was required it has constantly bought up the areas of which you speak and got me doubting certain conclusions that I had made.

I have now decided to draw the line on it and send it in. If it comes back, I will bite the bullet and look at it all again.

The others look a lot more straightforward and fact based so better luck with them.

Thanks

Jason

Posted By Adrian Watson
Jason,

COSHH is much easier to plead and prove than negligence. This is because COSHH imposes absolute duties, which negligence does not. The key to answering these questions is to answer the set question and not hypothicate as to alternative scenarios around the question. In light of this is may be useful to post the question.

Jonathan,

Whilst there is a theoretical risk of contracting anthrax from lime-horsehair plaster or other building materials, there is not a real risk of infection in the UK. To contract Anthrax you need to inhale large numbers of viable anthrax spores. The available evidence is that anthrax spores are attenuated by alkaline conditions; which is what you would find in lime and horse-hair plaster. As such whilst you can culture the odd spore, you cannot get a minimum infectious dose. Even if you get the odd spore or not, I recommend that dust masks be worn when removing old plaster.

Regards Adrian Watson

Posted By Robert K Lewis
Adrian

Barrow were issued Prohibition Notices which included a COSHH reg 7 citation. This is not an absolute duty it is a reasonably practicable one. Breaches of statutory duty are really much easier to plead when they are defined in absolute or practicable terms. Although there could be debate about the schedule 3 use of the term "as far as reasonly practicable or adequately controlled"

Bob

Posted By Adrian Watson
Bob,

Reg 7 is an absolute duty; see Dugmore v Swansea NHS trust. The reasonably practical bit is the duty to prevent exposure. The duty to control exposures is absolute.

Regards Adrian.

Posted By Adrian Watson
Cry,

Regards Adrian