UK: Health And Safety Newsletter February 2011

Last Updated: 18 February 2011
Article by Jan Burgess, Thomas Herd and Claire Kent

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 into the derailment. Its report identified a number of faults which led to the crash, including loose nuts on the points and failure to uncover defects during earlier inspections. However, responsibility for health and safety policy and enforcement on railways was transferred to ORR on 1 April 2006 and ORR is now leading the prosecution.

The announcement follows an inquest into the incident in June and July 2010, at the end of which a jury returned seven verdicts of accidental death. Ian Prosser, Director of rail safety at ORR said that the conclusion of the inquest has allowed ORR to make a decision as to whether any enforcement action should be taken in relation to the incident. Mr Prosser stated: "I have decided there is enough evidence, and it is in the public interest, to prosecute Network Rail and Jarvis Rail for serious health and safety breaches."

The proceedings are due to take place in January 2011 in Watford Magistrates Court, where the two companies could face fines of up to £20,000. If the case is committed to the Crown Court, as is likely, the companies could face unlimited fines.

It is questionable whether successful prosecution of the companies in this case will lead to satisfactory financial penalties and accountability being imposed on those actually responsible for health and safety at the time of the incident, given the passing of legal liability from Railtrack plc to Network Rail and the administration of Jarvis Limited.

HSE Chair gives speech on future of health and safety following Young Report

HSE Chair, Judith Hackett, delivered a speech in December regarding the future of Health and safety following Lord Young's report, which was published in October 2010 and summarised in our last Newsletter.

Implementing Lord Young's proposals

In the speech, Ms Hackett indicated that HSE was in support of Lord Young's recommendations. HSE has already launched simple online risk assessments for offices and shops and Ms Hackett stated that similar online tools were in development for classrooms. Such tools are intended to reduce the red tape for low-risk businesses and corresponding costs, as recommended by Lord Young.

Another of Lord Young's proposals concerned standards in the health and safety industry. To that end, HSE together with a number of stakeholders including IOSH and CIEH, have developed the Occupational Safety Consultants register which is intended to provide businesses with confidence in the industry. The Register should be up and running in January 2011 after which HSE envisages that it will be maintained by industry stakeholders. Similarly, a consultation on proposals to amend the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 is soon to commence and is reported separately in this Newsletter.

Managing the Comprehensive Spending Review

Ms Hackett also addressed the impact the Comprehensive Spending Review will have on HSE. HSE is to cut its dependence on public funding by a minimum of 35% over the next four years. Ms Hackett stated that government funding currently represents about two thirds of HSE's budget – the other third coming from regulated industries.

HSE plans to make savings by a mix of operational efficiency measures and new charges currently being considered. Under one of the proposals, HSE would operate a "fee for fault" principle where businesses would be charged for work done by HSE in the issuing of notices or other actions where breaches or improvements are identified. Also under consideration are ways to charge for non-statutory advice given to employers, HSE's input on planning matters and extending existing charges on businesses operating major hazard sites to other businesses that receive similar regulatory oversight.

HSE publish Food and Drink Manufacturing Injury Rates for 2009/2010

HSE recently published injury and enforcement statistics for the food and drink manufacturing industry which revealed a reduction in 'over-3-day absence' injuries but a rise in 'major injuries' against 2008/2009 figures.

The over-3-day absence figure reduced from 1197 in 2008/2009 to 1165 in 2009/2010 (or -2.7%) whereas major injuries increased from 224 in 2008/2009 to 238 in 2009/2010 (or +6%). Despite the increase in major injuries, HSE stated that fatal injuries have more than halved during the last 20 years and that the long-term trend shows a 31% reduction in the major injury rate since 1996.

In the ten year period from April 2000 to March 2010 there were 44 fatal accidents in the food and drink manufacturing industry. Machinery, workplace transport and falls accounted for more than 60% of that figure.

According to HSE's statistics by industry, food and drink manufacturing still remains a relatively high-risk industry and suffers an injury rate 1.8 times higher than the UK manufacturing average. Injuries are mostly caused by manual handling and slips or trips. 2008/2009 figures show that dairy, animal product and meat production account for a disproportionately large number of reported injuries.

HSE credit the overall continuing downward trend in injury rates to the joint HSE/food industry 'Recipe for Safety' Initiative which was set up in 1990.

European Commission considers single offshore legislative framework

In October 2010, the European Commission published a Communication entitled "Facing the challenge of the safety of offshore oil and gas activities". The communication followed an urgent safety assessment of oil and gas exploration and production activities in European Waters following the Deepwater Horizon accident in May 2010.

The Communication highlights that oil and gas operations in Europe are largely determined by the national legislation of each member state. Accordingly, the licensing, operational safety and environmental regimes can vary dramatically. The Commission believes that this complicates the management of health, safety and environmental risks and risks hampering incident response. The Commission's proposal is that a single legislative regime for offshore oil and gas activities throughout Europe be produced.

The Commission argues that it is crucial that licensing procedures across Europe conform to certain basic common criteria because major oil spills are not limited to the boundaries of individual states. It has suggested a number of key requirements for the licensing of hydrocarbon exploration and production that it proposes should be defined at EU level. These include:

  • Presentation of a full 'safety case' and associated health and safety documentation for each operation.
  • Demonstration of the technical capacity of prospective operators to take appropriate measures to prevent and respond to critical events.
  • Financial capability to handle the consequences of unforeseen events.

The Commission recognises that as member states transpose minimum requirements from health and safety directives into national legislation, variations will occur. It states that requirements applicable to industry must be designed according to uniform criteria. One of the Commission's proposals is to extend the scope of EU product liability legislation to cover mobile offshore drilling rigs (MODUs), which are currently not included in the legislation. The Commission has also stated an intention to assess current regulations for well design and control in light of the lessons learned from the Deepwater Horizon incident.

The Commission indicated its intention to work with member states to provide a framework for independent evaluation of the performance of national regulators (e.g. DECC) in order to ensure that common standards are being applied across Europe.

The Commission sees the EU as well placed to take a key role in international efforts to strengthen health & safety rules globally and plans to work with existing international partners to initiate an EU-driven global initiative for offshore safety.

It will be interesting to observe how far the Commission's proposals make it through the EU legislative process. It is understood that the Commission aims to put a formal proposal together before summer 2011.

The UK, which is renowned for its high standards in offshore health and safety, has already indicated that it will not be supporting the Commission's proposals. Oil and Gas UK's Chief Executive, Malcolm Webb, has strongly criticised the proposals, stating that "Safety is the most important issue for all persons working the UK oil and gas industry and we never take it lightly. Our lives and livelihoods depend on it. This is why we must respectfully but openly disagree with the Commission's proposed implementation of a federal, prescriptive approach to safety across the EU".

Recommended fitness standard for Oil and Gas Industry

The Energy Institute has published recommendations for minimum fitness standards for those working in the Oil and Gas Industry. The document, published in October 2010, offers guidance on administering fitness tests, an increasingly common practice in industry.

The Energy Institute contracted the University of Portsmouth to develop and recommend a suitable fitness standard and a number of oil and gas companies made contributions towards the project. Various facilities were visited and company employees interviewed to determine the most common and essential physical tasks carried out on and offshore. The tasks identified include:

  • opening and closing valves
  • climbing ladders and stairs
  • lifting and manual handling
  • pulling hoses and cables
  • emergency evacuation
  • survival training.

A number of potential benefits of introducing the fitness standards into the work place have been highlighted, including:

  • Minimising the potential for employing people who are not fit for physically demanding jobs.
  • Decreasing the potential for injury and/or breach of health and safety law.
  • Ensuring selection is based solely on the ability to complete tasks, thereby ensuring that it is fair and unbiased.

With the planned phase-out of the default retirement age due to take place this year, the use of fitness tests may also prove useful as a potential means by which an employer may fairly assess whether or not a worker is still fit to carry out the tasks required of them. Such as assessment would have to be objectively justified and the resulting employment situation carefully managed.

The Energy Institute has emphasised that the report does not provide guidance on policy issues or implementation strategies, which are considered to be matters for individual companies . Companies may wish to seek advice on the interaction between fulfilling safety requirements offshore and employment law.

The oil and gas industry currently requires a fitness test to be carried out only on members of Emergency Response Teams (ERTs) and it will be interesting to see whether or not the new tests are adopted by operators and contractors.

Companies committed to reducing hydrocarbon releases offshore

The oil and gas industry has recently set a goal of cutting leaks from offshore platforms by 50% over the next three years. The announcement was made by Oil and Gas UK and Step Change in Safety on 9 January 2011.

The target comes after the industry was criticised by HSE in August 2010 and told to "up its game" following the release of safety statistics showing an increase in the number of hydrocarbon releases. The figures showed an increase in the number of major and significant hydrocarbon releases from 61 in 2008/2009 to 85 in 2009/2010. HSE described this type of event as a "key indicator" of how well the offshore industry is managing its major accident potential.

Step Change in Safety, a safety initiative launched in 1997, has asked the managing directors of its member companies to build this target reduction into their business plans. John Forrest, co-chair of Step Change, stated that although there are multiple barriers in place to stop releases of oil and gas, it is also important to remember that even if they do occur, there are further barriers to prevent them from escalating into a more serious incident.

Although the responsibility for reducing the number of hydrocarbon releases will fall firstly on the companies managing oil and gas installations, Step Change hope to drive the reduction at an industry level by sharing analyses of the root causes of incidents, addressing the management of ageing assets, and circulating best practice.

To view our original Law Now article on HSE's warning to the industry, please go to: www.law-now.com/DirectMail/%7B5A4D84DB-E23F-4633-BE27-5D58F1601448%7D_hsewarnsoilandgas240810.htm

DECC to increase offshore environmental inspections

On 11 January 2011, the Energy Secretary, Chris Huhne, announced that there would be an increase in the annual number of offshore environmental inspections carried out by DECC's Offshore Environmental Unit from 80 to 150.

The number of inspections was increased from 60 to 80 in June last year following the Gulf of Mexico oil spill. The recent increase to 150 inspections is to be facilitated by the appointment of 15 new offshore environmental oil and gas inspectors. The increased costs associated with these appointments are to be recouped through fees charged to the industry, although the details have not yet been revealed.

The increase in inspectors will enable DECC to carry out annual inspections of all manned fixed installations and around 24 drilling rigs. It will also allow two inspectors to visit deepwater and more complex projects, rather than one.

DECC's announcement comes only days after the Commons Energy and Climate Change Committee published its report on UK Deepwater Drilling, recommending that a number of improvements be made to safety standards and regimes in the UK, despite the UK's current "high regulatory standards".

Commenting on the reasons behind his decision to increase the number of inspectors and inspections, Mr Huhne stated "The UK's safety and environmental regime is one of the most robust in the world. But we are not complacent and more environmental inspections should provide further assurance that Government and industry are alert and working hard to ensure that a spill like Macondo doesn't happen in UK waters."

Mr Huhne also revealed that DECC will be leading a comprehensive review into the UK's offshore oil and gas regime in collaboration with the Health and Safety Executive, the Maritime and Coastguard Agency and other independent experts. The review, which is due to commence following a thorough analysis of the findings of the US Presidential Commission Reports into the Macondo oil spill, will be based on the life cycle of an offshore development.

To view our Law Now article on the recommendations made in the Report, please go to: www.law-now.com/DirectMail/%7BFD4B9D1F-121E-4D4FA6B1-2315AAA8D876%D_commonscommjan2011.htm

Focus on: Clean Energy Technologies

With governments and industries around the world working to reduce carbon dioxide emissions, the clean energy sector is experiencing a boom. The UK's wind and wave resource coupled with its mature offshore industry would seem to make it ideally suited to becoming a leader in clean energy expertise. Current notable projects include the Gwynt y MÔr offshore wind farm in North Wales and the Longannet Carbon Capture and Storage retrofit.

Offshore Carbon Capture and Storage (CCS)

The capture and storage of carbon dioxide gas deep underground as a means of mitigating the use of fossil fuels is a relatively new concept and one which is not specifically addressed by UK safety laws. Most CCS proposals involve the storage of carbon dioxide offshore in underground geological formations, such as depleted oil fields, gas fields and saline formations.

Carbon dioxide is already injected into some oil fields in North America, such as the Weyburn- Midale Carbon dioxide Project, albeit primarily for the purpose of Enhanced Oil Recovery (EOR). Statoil's Sleipner West field hosts the world's first offshore CCS installation, which has captured and stored around one million tonnes of carbon dioxide every year since 1996. In the UK, the Government's Department for Energy and Climate Change (DECC) launched a CCS demonstration competition in 2007. Up to £1 billion was awarded in the October 2010 Spending Review for the capital costs of the first demonstration project.

What are the Risks of CCS?

Like many energy technologies, CCS has major accident hazard potential and operators will need to ensure that suitable controls are in place to mitigate the risks.

The volume of carbon dioxide produced by CCS schemes makes transport as a gas impractical. It must instead be transported at high pressure as a 'supercritical' fluid. This presents a new risk; when pressure is lost in a supercritical carbon dioxide system (e.g. if there is a break in containment), the volume of the supercritical carbon dioxide rises dramatically and its temperature falls to as low as -80C. At that temperature, particles of solid CO2 (also known as 'dry ice') form which can be expelled at high velocities, creating impact and cryogenic burn risks. The warming of the ejected dry ice may create a subsequent asphyxiation risk as it turns to gas. The extreme temperatures also pose a risk to asset integrity and HSE have emphasised the important of gas monitoring systems that are sufficiently robust to withstand them.

Almost all existing knowledge regarding the behaviour of carbon dioxide at high pressures has been obtained from EOR operations and it is likely that future CCS projects will utilise higher pressures (upwards of 200 bar). HSE view the extreme properties of supercritical carbon dioxide as a significant safety hurdle and are proposing that appropriate scale experiments be carried out to further our understanding of what happens during large-scale supercritical carbon dioxide releases.

In addition to the unique risks of pressurised carbon dioxide, existing risks associated with the energy industry will arise. For example, a range of organic amines and other chemicals are commonly used in carbon dioxide capture processes. These substances are well known to be hazardous to health and are already categorised under the Control of Substances Hazardous to Health Regulations 2002.

What Health and Safety Laws Apply?

While HSE believe that some laws must be amended to take account of specific risks from CCS, they consider much of the current health and safety regime up to task. Most of the UK's health and safety laws apply to offshore installations and wells by virtue of the Health and Safety at Work etc Act 1974 (Application Outside Great Britain) Order 2001.

Offshore Safety Case Regulations

Similarly, the Offshore Installations (Safety Case) Regulations 2005 require operators of Offshore Installations to submit safety cases. In a safety case, operators must describe management systems and show a systematic and structured approach to managing the major hazards on the installation. "Installation" in terms of the regulations extends to those used for the storage of gas in or under the shore or bed of relevant waters.

Pipeline Safety Regulations

The Pipeline Safety Regulations apply to both onshore and offshore pipelines. Carbon dioxide is not currently classed as a "dangerous fluid" in terms of the Pipeline Safety Regulations which means that the notification and Major Accident Prevention requirements of the regulations do not apply. Similarly, carbon dioxide does not by itself fall under the Control of Major Accident Hazard Regulations (COMAH) 1999 or the Planning (Hazardous Substances) Regulations 1992, which apply onshore.

HSE recently consulted on the Pipeline Safety Regulations, noting that "the presence of carbon dioxide does not, by itself, trigger any of the major hazard legislation". However, HSE stated in their response paper, which was published in the final quarter of 2010, that "it is too early in the process of developing this new technology to legislate in this area and consequently [HSE] has taken the decision to postpone this amendment." The Pipeline Safety Regulations are, however, applicable in the limited framework of the current UK CCS demonstration projects.

A Report to the North Sea Basin Task Force by BERR in 2008 noted that some existing pipelines may be suitable for lower-pressure transport of supercritical carbon dioxide when they become available following close of production from the gas fields they service.

Offshore Wind and Wave Power

Wind power generation is a more mature technology but one which faces challenges as it increasingly expands offshore. Similarly, a 2009 'Horizon Scanning' Report by HSE envisages the large-scale roll-out of wave and tidal units around the UK coastline over the next 10-15 years. Notable projects include the London Array in the Thames Estuary (expected to become the largest wind farm in the world, with 341 turbines, when it is completed) and the E.ON West Orkney wave farm demonstrators.

What Health and Safety Laws apply?

By a 2009 amendment to the Health and Safety at Work etc Act 1974 (Application Outside Great Britain) Order 2001 the scope of the 1974 Act was extended to areas outside the UK's territorial waters (which extend 12 miles from shore only). The Renewable Energy Zones, created under the Energy Act 2004, are now included . Accordingly, UK health and safety laws largely apply as normal to offshore wave and wind projects.

Construction, Design and Health and Safety Management

The construction and repair of offshore turbines and marine devices presents the greatest challenge to health and safety management - particularly as new generation turbines become bigger and taller. The harsh conditions of the offshore environment may also necessitate regular maintenance visits.

Offshore wind construction will almost always be notifiable to HSE under the Construction, Design and Management (CDM) Regulations 2007, which imposes a wide range of duties on employers to plan, co-ordinate with contractors and assess design safety amongst other things. Several Approved Codes of Practice accompany the Regulations.

What are the risks of wind and wave power generation?

HSE's view is that existing Health and Safety legislation adequately covers the risks posed by offshore wind and wave technologies. In 2009 Horizon Scanning documents for wind and wave technologies, HSE listed the following as concerns in wind and wave projects:

  • Working with large equipment during construction and maintenance of installations.
  • Access to and egress from wind and marine energy installation and in particular, stepping on and off of boats.
  • Diving activities during construction and maintenance.
  • Work at height and contact with moving machinery. Rarer risks include ice throw and turbine failure; ice and turbine fragments can travel through the air at velocity and for considerable distances.

Industry Guidelines

HSE has considered publishing guidance on wind and wave power generation activities but to date, no comprehensive guide has been produced. Renewables UK, an industry body, has published guidelines for health and safety in the marine and wind sectors for some years now which are accessible online.

The 2010 Renewables UK wind energy guidelines include a 10 page appendix on access, egress, abnormal events and response for offshore wind turbine generators and updated guidance on lifting operations. Similar guidelines for the marine energy sector, covering both wave and tidal power, are also available.

Challenges for the Regulator?

HSE are conscious that growth may stretch its resources, which are already being challenged by a 35% budget cut following the Comprehensive Spending Review in 2010. However, it seems clear that growth in clean energy technologies is set to continue and it's likely that many lessons in safety will be learned through experience as projects increasingly come online.

Case Law

Companies and Manager to Pay £500,000 in Fines and Costs for Aerosol Explosion

Deeside Metal Company Ltd and Jeyes UK Ltd were prosecuted after a worker suffered 90% burns and subsequently died when aerosol canisters he was crushing caught fire. The manager of Deeside Metal Company, Mr Robert Roberts, was individually prosecuted.

Deeside Metal Company had received the canisters from Jeyes UK, a manufacturer of household and cleaning products. Jeyes UK had failed to clearly label and segregate them from less hazardous waste. As a result, employees handling the canisters had assumed that they were empty when they in fact contained extremely flammable substances. A worker, Mark Wright, had been instructed by Mr Roberts to crush the canisters in a metal baler. When the baler was activated, a canister caught fire and engulfed Mr Wright in flames.

Caernarfon Crown Court heard that neither company had carried out suitable risk assessments before allowing workers to handle potentially hazardous materials such as aerosols and that both had failed to train or monitor staff engaged in their disposal.

Deeside Metal Company pleaded guilty to charges under section 2(1) of the Health and Safety at Work etc. Act 1974 and Regulation 3(1) of the Management of Health and Safety at Work Regulations 1999, which places an obligation on employers to carry out risk assessments. The company was fined £100,000 and ordered to pay £10,000 costs. Its manager, Mr Roberts, was charged under Section 7 of the 1974 Act and fined £10,000.

Jeyes UK was fined £330,000 and ordered to pay £50,000 in costs after pleading guilty to a charge under Section 3(1) of the 1974 Act.

HSE stated that this case must "serve as a warning to other companies handling potentially dangerous material about the consequences of not having safe working practices in place." It also highlights that the prosecuting authorities will not stop at prosecuting companies, where individuals are partly to blame for failures leading to an incident.

Construction Company Fined £266,000 for Death of Contractor

On 21 December 2010, Hotchief Construction AG was fined £266,000 (reduced from £400,000 due to an early guilty plea) for the death of a construction worker employed by a sub-contractor at the Glendoe hydro-electric scheme near Fort Augustus in Scotland.

Ondrej Hladick was crushed while operating a telehandler lifting vehicle. The court heard that the vehicle was in a poorly maintained condition and that in particular, one of the vehicle's windows was missing. It is believed that Mr Hladick was crushed by the telehandler's telescopic lifting arm by leaning out of the missing window while the arm was lowered. Had the protective window been in place, the incident would not have occurred.

This case highlights both the need for companies to properly vet the health and safety management systems of their contractors and the importance of regular and proper maintenance checks of vehicles at work.

In any contractor/sub-contractor relationship, both parties will have duties under health and safety law which, amongst other things, places duties on employers sharing a workplace to co-operate and co-ordinate on health and safety matters. All companies should have procedures in place for vetting, instructing and supervising contractors.

Similarly, companies employing workplace transport and/or equipment should have procedures in place to ensure that it is properly and regularly checked and maintained. The PUWER and LOLER regulations include specific provisions on lifting vehicles such as telehandlers and Approved Code of Practice L117 provides guidance on operator training.

Offshore Radiation Exposure Results in £300,000 Fine

An oilfield services company was recently fined £300,000 (reduced from £450,000 due to an early guilty plea) for placing workers at risk of exposure to a radioactive source.

The company in question was contracted to carry out wireline logging operations at a well in the North Sea. The operations involved the lowering of a logging tool fitted with a radioactive source which would collect data for transmission to the surface.

The radioactive source was not properly fitted to the logging tool prior to its lowering into the well and lay on the drill floor for a number of hours. As a result, 14 workers were placed at risk from exposure to the radioactive source.

The case serves as a caution for the offshore, medical and all other industries using and storing radioactive materials. All industries using such materials have duties to ensure that they are properly supervised and stored in a manner compliant with, amongst other things, the Ionising Radiation Regulations 1999.

Poor Training Leads to Death in Care Home

A care home operator was fined £80,000 and ordered to pay over £40,000 in costs following a successful prosecution by HSE in relation to the death of a 42 year old man in its care in Grimsby. Anthony Pinder, who had behavioural and learning difficulties, was restrained by the company's staff for a period of 90 minutes in 2004. On his release, he crawled unaided to his room and was found dead a short time later.

Leeds Crown Court heard that the staff employed by the company had not received adequate training on the means to safely physically restrain patients. The measures used to restrain Mr Pinder were described as "poor, inappropriate and dangerous" during the hearing.

HSE said that those engaged in the restraint were not blamed and the court heard that they had done only what they felt was necessary under difficult circumstances. That they did not know how to properly respond in those circumstances was a failure of their employer. Despite a warning that urgent need for safe restraint training was required five months prior to the incident and a promise from senior managers to do so, the company had failed to train its staff. The company was also criticised by HSE for failure to implement training following Mr Pinder's death.

All employers have duties to ensure that their employees are sufficiently trained to carry out work activities in a safe manner. This case highlights the risks of inadequate training.

Recycling Company Fined £200,000 after Worker Killed by Crane Hook

Celsa Manufacturing (UK) has pled guilty to breaching section 2(1) of the Health and Safety at Work etc. Act 1974 after an employee was struck by a crane hook weighing 3.7 tonnes. The worker suffered severe head injuries and later died in hospital. The company was fined £200,000 and ordered to pay costs of nearly £37,000.

The crane hook was being used to convey ladles of molten steel in the company's 'melt' shop in 2007. HSE found that while there was no mechanical defect with the crane, the hooks were able to move at head height near to operators on the ground without adequate safeguards. HSE Inspector Stephen Jones stated that the company should have put a thorough risk assessment in place and acted upon that risk assessment, given the hazardous nature of the operation. The court heard that the company had not addressed the fact that the crane hooks were able to move at head height near to operators on the ground and that crane operators were unable to see all employees on the ground.

The case highlights the need to carry out suitable risk assessments of all work activities and, importantly, implement appropriate control measures.

Prosecutions for Machine Trap Injuries

Glossop Carton and Print Limited, a packaging manufacturer, was ordered to pay over £125,000 in fines and costs following a guilty plea to health and safety breaches that led to the death of a worker.

The decision in December 2010 related to an incident in 2006 in which maintenance worker, Clive Hall, suffered fatal injuries while working on the inside of a 'cut and crease' machine. The machine was switched on by an operator while Mr Hall was inside, causing a fatal blow to Mr Hall's head.

HSE commented that the accident was easily avoidable and that the simple procedure of cutting the power supply to the machine would have prevented the death.

In a separate case, Elliot Absorbent Products Limited, a Rochdale food manufacturer, was fined £27,500 on 7 January 2011 for an incident in which an employee was dragged into a laminator machine. In that case, the manufacturer had disabled infra-red equipment designed to stop the machine when approached. The company had also been served with three Improvement Notices relating to machine guards prior to the incident.

The operation and maintenance of work equipment and machinery is covered by the Provision and Use of Work Equipment Regulations 1998 (PUWER). Employers have duties under the regulations to ensure that equipment can be isolated from all sources of energy and that emergency stop controls are fitted if appropriate.

Pharmaceutical Company to Pay Over £100,000 for Exposure to Hazardous Substances

Catalent UK Swindon Zydis Limited (trading as Catalent Pharma Solutions) was ordered to pay over £100,000 in fines and costs in December 2010 for exposing ten of its employees to Olanzapine, a hazardous substance. Charges were brought under the Health and Safety at Work etc Act 1974 and four different regulations in the Control of Substances Hazardous to Health Regulations 2002 (COSHH).

Olanzapine, an ingredient of a commonly prescribed anti-psychotic drug, had been confirmed as the potential cause of previous cases of allergic contact dermatitis at Catalent's factory in Swindon. Despite two confirmed cases in October and December 2007 and a visit by HSE, the company failed to review its risk assessment until February 2008. During HSE's investigation into the incidents, a further eight employees were confirmed as suffering from allergic contact dermatitis caused by contact with the substance.

Regulation 6 of COSHH requires that employers review risk assessments regularly and forthwith if there is reason to suspect that the existing risk assessment is no longer valid or if the results of statutory monitoring show it to be necessary. Amongst other things, Catalent failed to react quickly, as it is required to do, to reduce the risk of further injury.

Worker Knocked Out By Nitrogen in Confined Space

A Black County recycling company was prosecuted and fined £13,000 after a man fell unconscious while working in the chute of a fridge recycling machine at the company's site in Lye.

The court heard that the worker regularly entered the chute to clear blockages. As fridges have the potential to explode, nitrogen gas was pumped into the chute to reduce the explosion risk. After climbing into the chute, the worker passed out due to low levels of oxygen and required to be rescued by a colleague.

HSE found that the company had not assessed the risk to its workers posed by the nitrogen gas. Furthermore, the company had failed to assess the risk of working in the confined space of the chute.

The Company was prosecuted for breaches of the confined Spaces Regulations 1997 and Regulation 3(1) of the Management of Health and Safety at Work Regulations 1999. The case highlights the importance of identifying potential risks in the workplace and compliance with risk assessment procedures.

Fingers Severed by Work Equipment

A number of fines have been levied recently following manufacturing and construction accidents in which workers' fingers have been severed.

Komatsu UK Ltd Birtley, a producer of mining and construction equipment, was sentenced in December 2010 after a worker severed two fingers while operating a drilling machine. HSE's investigation found that using the drill was not part of the worker's normal work and he had not received training on its use. Furthermore, a guard that may have prevented the incident was missing from the drill.

In a separate incident, GJ Bream and Son Ltd, a Bury St Edmunds construction and building company, was fined after a worker's thumb and index finger were severed while operating cutting machinery. The HSE investigation discovered that the company had not properly assessed the risk of the work activity and had failed to train staff properly.

Another Bury St Edmunds company, Chadwicks of Bury Ltd, was sentenced in December 2010 for an incident in which a worker had four fingers severed by a lid-punching machine while re-threading paper through the machine's cutting tool.

The company, which manufactures lids for yogurt pots and other food containers, had disabled sensors on the machine that would have stopped the machine operating while paper was being rethreaded.

The recent sentences in which the companies were fined tens of thousands of pounds highlights the dangers of machine equipment in the manufacturing industries and the importance of safety guards and training. All manufacturers and industries have obligations under the Provision and Use of Work Equipment Regulations 1998 (PUWER) to ensure that machinery is safe, risks are assessed and employees properly trained.

Health and Safety - what we do

Our expertise

CMS Cameron McKenna is recognised as a leading firm in the area of Health and Safety. We provide specialist advice on regulatory compliance, prosecutions, investigations and corporate governance. We have specialised knowledge of the offshore and energy sector in particular, which faces greater challenges and regulation than most. However, our client base and expertise spans a broad range of sectors, including:

  • Aviation
  • Construction
  • Communications
  • Energy
  • Leisure
  • Manufacturing
  • Renewables
  • Transport

Regrettably, accidents at work can be serious and sometime result in fatalities. Our clients appreciate the high level of attention and support we are able to offer during what can be a difficult time for any organisation. We are able to provide assistance with every aspect of incident response, including incident investigations, dealing with witnesses, defending prosecutions and advising senior management on relations with the Health & Safety Executive.

Emergency Response team

Our specialist team is on call to provide assistance and respond to incidents 24 hours a day. Our team is qualified to practise in England, Wales and Scotland but also regularly advises clients in relation to international working practices and health & safety matters in other jurisdictions.

Our clients come to us for advice on:

  • Health and Safety prosecutions
  • Accident Inquiries
  • Formal interviews and investigations undertaken by inspectors
  • Corporate Manslaughter investigations
  • Inquests and Fatal Accident Inquiries
  • Appeals against Improvement and Enforcement Notices
  • Compliance with UK and European regulatory requirements
  • Drafting corporate Health and Safety policies and contract documentation
  • Safety aspects of projects and property management
  • Due diligence in corporate acquisitions/disposals
  • Directors' and officers' personal liabilities
  • Management training Courses
  • Personal injury defence Risk management and training

Recent experience

  • Defending Health and Safety prosecutions of client companies.
  • Appealing other types of enforcement action against companies (e.g. Prohibition Notices).
  • Conducting numerous Coroners' Inquests and Fatal Accident Inquiries - including some of the most high-profile and complex Inquiries to have taken place in relation to offshore incidents.
  • Obtaining the first ever award of expenses against the Crown in favour of a client company following a Fatal Accident Inquiry.
  • Taking appeals to the High Court of Justiciary.
  • Taking appeals on human rights issues to the Privy Council.
  • Defending Judicial Reviews.
  • Advising on forthcoming Health & Safety legislation.
  • Assisting clients in consultations with the Health and Safety Executive and other regulatory bodies, including the Department for Energy and Climate Change.
  • Advising clients in relation to Safety Cases, Corporate Governance issues and Directors' duties and liabilities.
  • Undertaking transactional due diligence in relation to Health and Safety matters.
  • Advising clients on incident investigation, legal privilege and dealing with HSE inspectors.
  • Preparing and drafting incident investigation reports.
  • Advising clients on media, public relations and reputational issues following incidents.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 16/02/2011.

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