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Risk Advisor October 2011


What's in this month's newsletter?



Weather Warning, Employment Law Changes, Directors Health & Safety Responsibilities and the latest case law . .

It is all here . .

There is a lot to catch up with in this latest edition of Risk Advisor. We will be looking at the onset of winter, the key changes in Employment Law, how you can find out about your H&S responsibilities as a Director, some recent case law and a reminder about your First Aid box.


Weather Warning!


Yes Watch out for Bad Weather!


bad weatherWhile we have recently been basking in the best weather of summer (even though it is officially autumn), we are advised to watch out for early snowfall! The Daily Mail has advised us that winter weather will soon be with us and we should be prepared for difficult driving conditions and the possibility of frozen pipes.
This latest example of what we are told is due to global warming (at RMAS we prefer to call it weather) should be a warning to always expect the unexpected. In this case that snow will fall this week; and that the Daily Mail has got it right!!


Please telephone RMAS on 084 321 81 673 or email RMAS for our guides to winter motoring and property protection.



Changes to Employment Law

Changes effective from 1st October

A full article will follow next month but briefly be aware of the following changes effective from 1st October –
Free Employment GuidelinesRise in Minimum Wage –the national minimum wage rises as follows –

  • Adult rate increases by 15p to £6.08 per hour
  • 18-20 years olds increases by 6p to £4.98 per hour
  • 16-17 year olds increase by 4p to £3.68 per hour
  • Apprentices increase by 10p to £2.60 per hour

Agency Workers –
Temporary Agency workers will now be eligible for equal treatment to working and employment conditions with your full time workers when they have worked continuously with you for 12 weeks.

Please contact RMAS on 084 321 81 673 or email RMAS for our employment guide.


Directors – do you know your responsibilities?

Many Company Directors are unaware of their Health & Safety Responsibilities

Ensuring the safety of your employees at work is paramount to staff productivity and to avoiding costly accidents and lawsuits (as the next article will show).
The Corporate Manslaughter Act 2007 introduced the principal that companies can now be charged with corporate manslaughter as a result of gross breaches of care.
Directors need to be able to show that they have taken all reasonable steps to manage risks, implement effective health and safety management systems and develop strategies for worker involvement.

RoSPA have developed a course exclusively for directors and their important role in health and safety. Their next course is being held in Birmingham on 11th November 2011. The fee is just £350 plus VAT. For more information on their Directors’ involvement in Health and Safety course please contact RoSPA on 0121 248 2233 or email


Case Law

Wrong System, No Risk Assessment, NO DEFENCE!!

This case has been drawn to our attention by Ian Pears of Park Woodfine, Heald Mellows LLP. If ever there was an accident waiting to happen this was it.


The case is –
Bhatt v Fontain Motors CA July 2011

Mr Bhatt worked at the garage and car showroom. Car bumpers were stored in a loft space above the car showroom. Mr Bhatt was injured falling from a ladder.
The procedure to collect a bumper was to –

  • Remove any car parked below the storage area
  • Get a step ladder
  • Ascend the ladder and remove a ceiling tile
  • Descend and them remove the step ladder
  • Obtain a long ladder and an assistant to hold the foot of it
  • Place the ladder through the hole created by removing the ceiling tile
  • Ascend the ladder
  • Reach into the ceiling void and remove the bumper (presumably without placing any weight on the ceiling system)
  • Struggle handling the bumper through the hole around the ladder
  • Descend the ladder

The court found for Mr Bhatt because of a series of breaches (in particular to avoid risks from working at height and a failure to select appropriate equipment) of the Working at Height Regulations 2005.


The employer argued that Bhatt was entirely to blame and appealed but the Court of Appeal dismissed the case.

NOTE: this is an example of an accident waiting to happen. A simple risk assessment (like you have just done in your head) would have identified the problem. Mind you a review of the time and effort involved in storage and retrieval of car bumpers would have also addressed this issue.

Harvey v Plymouth City Council (CA, July 2010)

Mr Harvey was running on waste land belonging to Plymouth City Council when he fell a distance of 5.5 metres into a Tesco car park below.  Mr Harvey had been heavily drinking and may have been “doing a runner” from a taxi.


Oddly, Plymouth City Council had forgotten it owned the land so hadn’t inspected it for 6 years.  The council even tried to argue that as it had forgotten it owned the land it had no knowledge of inappropriate use and therefore couldn’t be held liable.


Initially the Court found in favour of Mr Harvey, but the Court of Appeal overturned the decision and decided in favour of the council.


The Court of Appeal held that the duty of care was to make premises reasonably safe for use for the purposes for which the visitor was invited or permitted by the occupier to be there


It did not extend beyond the scope of activities for which the licence had been expressly or impliedly given.


The issue therefore is not whether Mr Harvey’s conduct might have been foreseen, but whether his conduct had been given implied consent by the occupier.
Note: Many occupiers feel they have to make their premises over safe because of the risk of trespassers injuring themselves.  This has never been the case and the Court of Appeal has yet again stressed this.


Please note that the law is applied slightly differently if the trespasser is a child.


Johnstone v AMEC (IHCS, June 2010)


construction siteIn July 2006 Mr Johnstone was patrolling a construction site at 3.00am as part of his duties as a security guard.  He injured his left leg when he tripped over one of the feet of a free-standing section of metal barrier fence which had blown over. This particular barrier was not linked to the adjacent one because it was used to allow vehicles on and off site.  There were notices on the barrier, which increased its wind resistance.


Mr Johnstone sued the main contractor rather than his employer.


Technically the Provision and Use of Work Equipment Regulations apply to “employees” rather than “lawful visitors” and initially the Court found against Mr Johnstone. However, on appeal the Court found in Mr Johnstone’s favour.  The appeal Court found that the main contractor had failed to assess the risk and


if they’d done so the fence would have been constructed differently and so the injury could have been avoided.
Note: when assessing risk in a work environment, regard should also be taken of lawful visitors.

If you can think of a similar situation in your business please deal with it as soon as you can. If you need any assistance in identifying a better method of reducing or removing a risk RMAS can help.


Call 084 321 81 673 or email RMAS if you need any assistance.


First Aid Box

Do you know what should be in your First Aid Box?


Is your first aid box kept up fully stocked? Who checks and records what is used and is responsible for ensuring there is a sufficient quantity of the right dressings and other materials. Is this recorded in your Health & Safety documentation? If you need more information on what should be in your first aid box call RMAS on 084 321 81 673 or email RMAS .


We hope you found this edition of Risk Advisor to be of interest. If you would like further information on any of the articles please feel free to call 084 321 81 673 or email email RMAS .

Please pass this message onto any of your customers, suppliers or other business colleagues if you feel this could be helpful to them.