Health And Safety Newsletter February 2011

Welcome to the Health and Safety Newsletter, which contains updates on the latest Health & Safety cases and their implications for directors and businesses. This edition covers:

Deepwater Horizon -Commons Committee Report Concorde crash conviction HSE Consultation on Proposed Changes to RIDDOR Companies prosecuted over Potters Bar Derailment HSE Chair gives speech on future of health and safety following Young Report HSE publish Food and Drink Manufacturing Injury Rates for 2009/2010 European Commission considers single offshore legislative framework Recommended fitness standard for Oil and Gas Industry Companies committed to reducing hydrocarbon releases DECC to increase offshore environmental inspections Focus on: Clean Energy Technologies Case Law Health and Safety - what we do Deepwater Horizon - Commons Committee Report

On 6 January 2011, the House of Commons Energy and Climate Change Committee published a report entitled "UK Deepwater Drilling – Implications of the Gulf of Mexico Oil Spill". The report comes almost six months after an inquiry was set up to examine a range of issues following the Gulf of Mexico incident in April last year which resulted in the death of 11 workers and a major oil spill.

The call by European Commissioner Guenther Oettinger for a moratorium on deepwater drilling was one of the issues that the Committee examined. The Committee concluded that there should not be a moratorium on offshore drilling in the UK Continental Shelf. Amongst other things, the Committee reported that such a moratorium would cause drilling rigs and expertise to migrate to other parts of the world and harm the UK's security of supply.

The Committee did express "serious doubts" about the ability of oil spill response equipment to function in the harsh environment of the open Atlantic west of Shetland. The Report recommends that the Government ensure that any capping, containment and clean-up systems are designed to take full account of the environmental challenges in that area. A number of other significant recommendations were made in the Report, including:

Minimum safety standards

The report recommends that the Government should adopt minimum prescriptive safety standards for failsafe devices and consider specifically whether blowout preventers on the UK Continental Shelf should be equipped with two "blind shear rams" (the device which failed on the Macondo well in the Gulf of Mexico spill), rather than one.

Emergency response

The report recognises that it is essential that there is someone offshore who has the authority to bring a halt to drilling operations at any time, without recourse to onshore management. It recommends that the Government should seek assurances from industry that the prime duty of the people with whom this responsibility rests is the safety of personnel and the protection of the environment.

Liability

The report also recommends that the licensing process should require that prospective licensees prove their ability to pay for the consequences of any incident that might occur.

The Committee rejected calls for increased regulatory oversight by the EU and recommended that "EU countries without a North Sea coastline should not be involved with discussions on regulation of the offshore industry on the UK Continental Shelf". However, the Committee was receptive to EU involvement in a different context, calling for the Government to work with the EU to ensure a new directive is drawn up that follows the 'polluter pays' principle and unambiguously identifies who is responsible for the remediation of any environmental damage.

It will be interesting to observe the extent and pace to which the Committee's recommendations are implemented by the Government and the Health and Safety Executive. It is expected that the Government will be keen to act quickly upon any recommendations aimed at improving the UK's existing high safety standards. DECC has already announced that it will be increasing the number of annual inspections carried out on offshore installations.

To view the full Committee's full report, please go to: http://www.publications.parliament.uk/pa/cm201011/cmselect/cmerergy/450/450i.pdf

Concorde crash conviction

On 6 December 2010, a French court found Houston-based Continental Airlines guilty of involuntary manslaughter for its part in the Concorde crash in 2000 which killed 113 people. The Airline was fined €200,000 and ordered to pay €1m in damages to Concorde's operator, Air France.

John Taylor, a mechanic for Continental Airlines, was also found guilty of involuntary manslaughter and given a 15-month suspended jail sentence. Four other individuals were acquitted.

The ruling comes over a decade after the crash, which happened outside Paris on 25 July 2000. The trial began in February 2010, following a request in 2008 from a French public prosecutor. It is believed that investigators produced over 80,000 documents for the court during their investigation.

The official report on the crash, which was published in December 2004, found that a piece of metal fell from a DC-10 plane operated by Continental, which took off from Paris Charles de Gaulle airport just before the Concorde jet. The Concorde hit the titanium strip and one of its tyres burst, causing debris to hit and rupture a fuel tank, which then burst into flames. John Taylor had used titanium parts to make repairs to the DC-10. The judge confirmed that the titanium debris was to blame for the crash and found that Mr Taylor should have used a softer metal such as aluminium; titanium was known to be dangerous for aeroplane tyres.

Continental's lawyers have disputed the Court's findings, arguing that the Concorde jet caught fire before hitting the titanium strip. They have stated that they will appeal the verdict, describing it as "absurd" and stating that it "only protects French interests".

The court also ruled that Continental should pay 70% of any compensation claims to the families of the victims, with Aerospace group EADS, who built the supersonic airliner, to pay the remaining 30%. This could potentially expose Continental and EADS to claims in the tens of millions of Euros if insurance companies seek reimbursement for sums already paid.

Air France is separately seeking €15m in damages from Continental in a civil action, which was delayed pending the outcome of the criminal trial.

As Concorde flights ground to a halt in 2003, the impact of this verdict is likely to be measured by the reputational damage it causes Continental. It will also be interesting to see what impact (if any) this verdict will have on health and safety regulations in the aviation industry.

HSE Consultation on Proposed Changes to RIDDOR

The Health and Safety Executive has announced a consultation on proposed changes to the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (the RIDDOR regulations).

The decision to consult on the issue was prompted by Lord Young's Report on Health and Safety "Common Sense, Common Safety" which was published in October 2010. Lord Young recommended that the current three-day threshold for submitting a RIDDOR report when an employee is absent for work following an incident or injury at work be extended to seven days. This would coincide with the requirement for individuals to obtain a 'fit note' from their GP if their absence from work was expected to last more that one week. Such a measure would ensure that every person suffering a reportable injury has a professional medical assessment before returning to work.

The RIDDOR regulations were made under the Health and Safety at Work etc. Act 1974. They came into force on 1 April 1996 and place a duty on employers, the self-employed and those in control of premises to notify the relevant enforcing authority (HSE or the relevant local authority) when certain incidents occur at work, including death, major accidents and occupational diseases. Dangerous occurrences must also be notified.

Section 50 of the 1974 Act places a legal obligation on the HSE to consult before submitting proposals to change regulations. The consultation documents were published on 31 January 2011 and the deadline for responses is 9 May 2011.

Judith Hackitt, the HSE Chair, commented that "whilst there will be some obvious advantages in reducing the reporting requirements on business, there will be other factors which need to be taken into account. We hope that interested parties will use the consultation exercise to provide the range of perspectives we need to consider in order for is to advise the Government appropriately."

Companies prosecuted over Potters Bar Derailment

The Office of Rail Regulation (ORR) announced on 10 November 2010 that two companies face criminal charges for breaches of the Health and Safety at Work etc. Act 1974 in relation to the May 2002 Potters Bar derailment.

Network Rail Infrastructure Limited is facing a charge under section 3(1) of the 1974 Act for allegedly failing, as infrastructure controller, to implement suitable training and procedures for the installation, maintenance and inspection of stretcher bar points. Adjustable stretcher bars keep the moveable section of the track at the correct width for the train's wheels.

The infrastructure controller for the national rail network at the time of the incident was Railtrack plc (in administration). However, Network Rail Infrastructure Limited took over Railtrack in October 2002 and assumed its liabilities for the incident.

Jarvis Rail Limited, the infrastructure maintenance contractor responsible for the relevant section of the national rail network at the time of the incident, faces identical charges under section 3(1) of the 1974 Act. The charges will be brought despite the fact that Jarvis was put into administration in March 2010.

The Health and Safety Executive set up an independent Investigation Board using its powers under section 14 of the 1974 Act to oversee the investigation...