Thursday, 26 February 2015

X-Venture Legal Update January 2015


CDM and regulatory reform


Subject to Parliamentary approval, new Construction (Design and Management) Regulations 2015 (CDM) will come into force on 6th April 2015.  HSE has published draft legal guidance (L153)1 ( before the Regulations come into to help anyone who has duties under the Regulations to prepare in advance.  There will be no transitional period allowed for the events industry although the HSE has said that it will only proactively target events involving higher risk erection and dismantling of temporary and demountable structures.  The HSE has identified four strands for what it calls the entertainment sector which are TV and Film, Outdoor, Theatres, and Venues.  They have acknowledged that exhibitions will need separate consideration and the industry has been invited to send a representative to JACE2.  It is not clear whether exhibitions will constitute a separate strand.  The HSE intends to publish guidance for each strand and have stated that they will do so by April 6th.  It is not clear whether exhibitions will have its own guidance or still fall within the Venues strand. 


The key issue is that with 10 weeks to go before implementation and with no published guidance we are left with no clear idea of the full impact of these regulations legally, operationally and financially.


X-Venture has published a more detailed analysis of L153 to accompany this brief although those with direct interests in the outcome of the implementation of CDM are advised to read widely on the subject and canvass other views until the HSE can provide us with more certainty.


Those found innocent may still incur defence costs


Many will recall the tragic event in 2011 when drifting smoke from a rugby club firework display caused a multiple pile up on the M5 and 7 fatalities.  The organiser was originally charged with 7 counts of gross negligence manslaughter and later acquitted of health and safety offences3 on the grounds of foreseeability (see below).  Until recently defendants found innocent and not in receipt of legal aid could recover most of their costs but this changed in 2012 with the Legal Aid, Sentencing and Punishment of Offenders Act 2012.  Although the judge has some discretion if there is thought to be improper conduct by the prosecution this was not the case and so the defendant was liable for the full costs of his defence.  Winning a case could turn out to be a pyrrhic victory underlying the value of preventative strategies.




Reasonably foreseeable risk


A number of recent cases have contributed to the definition as to what might be deemed as reasonably foreseeable.  This is particularly pertinent in the event world where we often have to assess risks which are difficult to foresee and quantify given that the very nature of an event is that its context in terms of location, content and visitor profile will always be unique.  In the above case of the M5 crash Geoffrey Counsell’s defence hinged on whether the accident was foreseeable.  The judge held that even if it could be established that smoke had contributed to the poor visibility caused by the fog already present on the motorway, this could not have been reasonably foreseen and therefore was not material.


In the case of Mr Counsell it might be reasonably assumed, given that the accident was judged to be not reasonably foreseeable, that he acted with reasonable care.  But what if employees behave foolishly?   A Recent case which went to appleal4 sets a new precedent.  The employee whilst attempting to clear a jammed conveyor ignored the established controls causing his arm to be dragged in resulting in a fracture.  The engineer admitted that he had taken a foolish risk.  Despite this and the fact that the company had proper controls, risk assessment and a permit to work system in place they lost the case and incurred fines and costs totalling £41,500.  The company did not foresee that the employee would behave foolishly in the risk assessment and it is a reminder to duty holders to factor this in when conducting risk assessments.


Fee-for-intervention (FFI)


The HSE’s much maligned FFI scheme, which has been a regular feature of these updates, is still attracting comment.  The HSE commissioned an independent review which has found that FFI has been applied fairly and properly although this has not stopped the criticism by many commentators who point out that HSE inspections have risen by 6%.  Recently HSE chair Judith Hackitt issued an unequivocal statement that the FFI scheme would remain unchanged.  My view is that it encourages to the HSE to enforce the letter of the law for a material breach.  It remains to be seen how this device to charge for their services comes into play when event construction becomes subject to CDM regulations.


A recent ruling by HMRC has determined that since charges imposed on offenders are technically a charge for the HSE’s services they are deductible against corporate tax which may be a small compensation for those who end up paying out.


Forklift and telehandler fatalites


A wholesaler has been fined £175,000 plus £18,450 costs after an assistant at one of its branches was hit and killed by a forklift.  The case hinged around the company’s failure to adequately protect pedestrians from forklifts with designated routes.


In a separate case Costain paid out £615,000 in fines and costs following the death of a telehandler driver when it overturned on him.  The HSE found that the safety of the vehicle was compromised by the limited space and other obstructions where he was required to work. 


Whilst neither case is related to the events industry the circumstances are easily comparable to event construction work.  Vehicle movement and in particular the safety of pedestrians will be an HSE focus under CDM and those that have actually delved into L153 will have spotted that regulations 27 and 28 specifically address these issues.





1.    L series guidance provides advice to help dutyholders comply with the law but does not have the same legal status as an approved code of practice (ACoP) and includes a clause by clause examination of the regulations.

2.    Joint Advisory Committee on Entertainment

3.    R v Counsell

4.    Polyflor v HSE