Hi all,

Just looking for advice and where to look on a matter that has involved my company having a claim brought against them. 

for some context I work in the telecommunciation sector, involving digging of footpaths and the reinstatement of them. 

On this occassion waste is usally taken away but due to lack of labour we were unable to remove this and secured with Chapter 8's. 

A member of public has than injuried themselves on our work materials that was stored enclosed with chapter 8's.

We later found out on social media that a neighbour had moved the chapter 8's to make it convient for them getting into their property. 

Am I right in saying that the neighbour has unlawfully removed these and will have to burdon the claim. Also could someone point me in the direction of where to find this legislation where you cannot move these or just it just come under criminal damage?

Also I'm right in saying I need to report under RIDDOR but put about the neighbour moving the bariers

Thank you

Edited by user 10 August 2022 07:33:09(UTC)  | Reason: Not specified

Originally Posted by: Pretzzull

Also I'm right in saying I need to report under RIDDOR but put about the neighbour moving the bariers

I believe it will be RIDDOR reportable IF the member of the public had an apparent injury and was taken directly from the scene of the accident to hospital for treatment to that injury.  I don't know (from the account given) whether that applies.

I don't know what "the neighbour has unlawfully removed these and will have to burdon the claim" means.  Even if burdon is typo for burden, I don't know what the statement means.

If it's a civil claim you probably need to talk to your insurer.

If you're concerned about criminal liability, then as already advised, you need a lawyer.

the injured pary could argue that you placed them obstructing thier right of way and they had no choice but to move it...the flip side is that unless your authorisation for the works covers the change and the information was provided with an alternative route for the person you may have grounds for dismissing...but really from what you have said, if it goes to court in essence it is as they say a crap shoot...it will depend on the strength of your barrister on the day...my view would be if it is less that 5 or 10K then pay it out it will cost you more in fees to defend it...you can strong arm for so long to the point where it becomes inefficient... isn't legal avdvice it is just an alternative opinion  :)

Hi Pretzzull

You asked about the legislation....

Well the most relevant legislaton in the New Roads and Streetworks Act 1991 - usually vocalised as nerswa, but this is more about saying what SHOULD be done, rather than what shouldn't be done (in this case a third party moving some cones etc).

I suppose your starting point is the "Red Book" 8815 Safety at Streetworks v1_12.indd (publishing.service.gov.uk)

But I don't think you will find anything in the Red Book that envisages unauthorised changes to Chapter 8 protections by third parties.

If the set up were to obstruct somebody's access to their property, as Steve indicates, you probably have a problem trying to attempt to transfer liability for any claim - but this is one for your insurers and the lawyers.

we are all jumping in now...isn't that isn  essance what I said earlier..  :) :)

Interfering with something provided for H&S would be a Section 8 HASAW problem IF we were talking about workers at work.

As we are outside the work environment perhaps next time you might ensure enough labour to make the site truly safe before leaving it - placing temporary barriers is not really "making safe" as this incident amongst many proves.

Your risk assessment needs to consider everyone who could be harmed given your work is invaribaly in contact with all members of the public (adults, children, the disabled, their pets and other domestic animals).

A construction firm recently received a £600K fine for the death of a seven year old who accessed their site.

Originally Posted by: Roundtuit

Interfering with something provided for H&S would be a Section 8 HASAW problem IF we were talking about workers at work.

Section 8 applies to ALL persons, including members of the public. 

No person shall intentionally or recklessly interfere with or misuse anything provided in the interests of health, safety or welfare in pursuance of any of the relevant statutory provisions.

This has been covered in previous Discussions on this forum.

Tony.

As this is a member of the public how were they made aware that the Chapter 8 was placed in accordance with section 8 of an act about Health & Safety at Work?

Originally Posted by: Pretzzull

On this occassion waste is usally taken away but due to lack of labour we were unable to remove this and secured with Chapter 8's. 

For the uninitiated what is the 'Chapter 8's' you refer to?  Is it a boundry fencing ie, Heras Fencing?

As for the neighbour IMHO they are attribital partly to blame by interfering with the fencing.  Was any signs of do not touch on the fencing / warning signs of danger?  I'm sure you have gone down the road with hindsight wondering what has happened and what should have been done.

Originally Posted by: Roundtuit

As this is a member of the public how were they made aware that the Chapter 8 was placed in accordance with section 8 of an act about Health & Safety at Work?

I completely see your point. But, you've pushed the 'Trainer' button in me. Sorry if I seem patronisting (not my intent) but it is worth clarifing the matter for others who may not be aware.

In the UK legal system there is an 'assumed' awareness of the law. Thus the saying 'ignorance (of the law) is no defence'. However, Section 8 has no strict liability so intent (mens rea) has to be proved. The person has to have recognised that the item was intended to act as a 'safety feature' and then intentionally interfere with it, so as to negate the intended safety purpose. It's common sense to most people that you should not interfer with anything that looks like it is there to protect people, whether in the workplace or not.

In practice I can't see the HSE taking any interest in this specific event. 

Brian,

The only thing the HSE can enforce is the HSWA and its associated secondary legislation - with a couple of specific exceptions. In all of that the only bit that applies to people not at work (in terms of legal duties) is HSWA Section 8. 

One exception is the Fire Safety Law (England &Wales (RR(FS)O & Scotland's Fire Safety Act) in situations where the most significant fire risk is process fire - where the HSE can enforce the requirements.

The other is under COMAH as part of the role of Competent Authority, where is theory they can enforce Environmental Legislation. The reverse is also true that the EA/SEPA/NRW can enforce H&S requirements at COMAH sites. 

Not taking it in any other way than an exchange of ideas.

Another pair of well flogged expressions on the forum "common" and "sense".

As to perception of what has been placed in the interest of H&S just because it makes sense to practitioners or those on the tools it is a dangerous presumption when considering all members of the general public.

Life skills / experience / capacity / capability vary wildly and even someone once considered compos mentis may through age, illness or injury have no more recognition of danger than a new born (family experience).

Interestingly there is no definition of "person" within the act merely mention of at / not at work and employed / not employed yet in Section 3:

3 General duties of employers and self-employed to persons other than their employees. (1) It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety. (3) In such cases as may be prescribed, it shall be the duty of every employer and every self-employed person, in the prescribed circumstances and in the prescribed manner, to give to persons (not being his employees) who may be affected by the way in which he conducts his undertaking the prescribed information about such aspects of the way in which he conducts his undertaking as might affect their health or safety.

3(3) I would suggest applies as by the OP's admission the use of Chapter 8 barriers was not originally intended but a consequence of circumstance (lack of labour) which being alternate working should have been appropriately communicated to those who could be affected.

Originally Posted by: antbruce001

Brian,

The only thing the HSE can enforce is the HSWA and its associated secondary legislation - with a couple of specific exceptions. In all of that the only bit that applies to people not at work (in terms of legal duties) is HSWA Section 8. 

Yep i get that - as an inspector for 30 years would be sad if i did not - which is why i ask who enforces the new street act and what is its standing

Originally Posted by: antbruce001

Sorry Brian. I mis-interprated what you asked. My bad!

(Security check code: DuMb - quite fitting for me.)

 No problem easy to do and you were correct in what you were saying LOL

Just had it confiremed by what i consider a reliable sourse that "The enforcing authority for NRSWA is the highway authority, so usually the local Council" or in my case the  county council, which is what i thought  - sorry two hot for my frasseled dyslexic brain i appologise for any spelling mistakes.

Originally Posted by: lukewildsmith

legal team will look at "contributory negligence" in this matter, as the member of the public failed to act prudently, (have some bloody common sense)

Not sure you have followed the plot - the neighbour moved the barrier, a n other was subsequently injured.

How does the action of the neighbour make the injured party contributory negligent?

I still have my 1976 edition of "Redgrave's Health and Safety in Factories".

The Health and Safety at Work etc Act 1974 was so new fangled that this edition of Redgrave relegated HSWA behind what was left in the Factories Act 1961.

In a subsequent job. my employer paid for the 2010 (I think) edition of "Redgrave's Health and Safety at Work" where HSWA came first and there was less left in FA1961 (mostly as a result of the 1992 "six pack").

However, even then my 1976 was still my default when it came to looking up the authoritative case law, partly as almost all of the case law predates HSWA and partly as it was much easier to find and read than in the 2010 book.

Each book was in excess of 2000 pages, but the page size was bigger in the later one but the font size for case law smaller!!

Looking up the case law on "reasonably practicable" is easy - go to Section 4 of the Factories Act in Redgrave 1976. 

"Practicable" - Section 63 of FA 1961.

Considering what might or might not be "construction work" to which 'CDM' applies - on and about page 507 in Redgrave 1976 which deals with FA 1961 Section 176. Opened that often that I can almost do it automatically.

I've never used Redgrave as a sleeping companion, but I do know exactly which book shelf it is on and where (unlike most of my vocational library which needs sorting).

Having slept on this and I can even go further. The “works” and the associated risk assessment, should cover, clearing the area of the dig,  doing the dig,  fixing the cables etc, filling the hole and finally restoring  the path. The risk assessment should cover the whole process but, in this case, “due to a lack of labour”, they did not finish the job and make the path safe the same day. Did they assess the risk of leaving the path, overnight,  in this state? Did they include the risk to passers-by etc ?Did they convince themselves that the “chapter 8 barriers” would secure the waste pile, remembering that this is a public place where any pillock is free to roam as opposed to a private site where you can really control access? The fact that someone could move the barriers should have been included in the risk assessment.