Choco Page · Introduction – Page 3 · Assignment

Choco Case Study Assignment

 

Name: Alun Thomas

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                                                 Student
Number: 12202363

 

Module Title: Built
Environment Law

 

Module Number: NG1S708

 

Lecturer: Ros Welch

 

Word Count: 1,966

 

 

 

 

 

 

 

 

 

 

 

 

 

Contents Page

·      
Introduction – Page 3

·      
Assignment question number 1 – Page 4-6

·      
Assignment question number 2 – Page 7

·      
Assignment question number 3 – Page 8

·      
Conclusion – Page 9

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Introduction

The aim of this assignment is to outline and identify the
health and safety law breaches, civil law breaches and advise on the outcomes
of civil claims in the aftermath of the events that took place in the Choco
case study.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Assignment Question 1

As stated in the case study, Benny was known for being a
brave lion tamer because he refused to use a wooden chair which was normally used
by lion tamers for their own protection. He also repeatedly give away whips to
the audience at the end of each show, which resulted in his employer penalising
Benny with a £15 charge for every whip he gave away. Benny subsequently refused
to use whips in his act due to the charge.

The author has identified two breaches of the Health and
Safety at Work Act in this instance. The first breach is where Benny refuses to
use two items for which were intended and provided for his own protection; and
to prevent any harm to members of the audience. Section 7 (a) of the Health and
Safety at Work Act states that an employee shall take reasonable care for his
own health and safety and others who may be affected by his act or omissions.
Benny is evidently in breach of this act. Later in the case study Benny is
attacked by a lion and suffers near fatal injuries, which could have been prevented
if he had used the equipment provided.

The second breach is that Benny’s employer charges him a fee
for every whip that he uses and gives away to the audience. Under Section 9 of
the Health and Safety at Work Act, no employer should charge his employee of
any personal protective equipment (PPE) which is used for his work. Only in
circumstances where PPE is not required under statutory provisions or the
workplace is regarded as low risk can employers charge their employees for PPE.

During the incident of Benny being attacked by a lion, Choco
the clown (Benny’s brother and employee of Sloppyfiled’s circus) was contacted
about his brother’s attack whilst he was riding a charabanc, which is a new
addition of his circus act. In the panic of rushing to be with Benny, Choco
crashed the charabanc and suffered fatal injuries and died later in hospital.

Another employee at Sloppyfield, Oddjob, was responsible for
assembling the charabanc and had failed to report an accident that occurred the
day before Choco’s death. Oddjob was not properly informed by his employers how
to deal with situations such, which resulted in the failure to inform his
employers of what he believed was to be a defective charabanc. It was also
pointed out that the assembly instructions for charabanc was in Dutch.

The owner of Sloppyfield protested that he had done
everything he could to ensure this employee’s safety. However, the owner’s
sister also claimed that there was another type of PPE that was being trialled
in the USA that could have been procured for the business, but the trial showed
that there would be a reduction of tickets sales as circus-goers would not be
impressed with the extra precautions in the lion taming act. In this instance,
there is no clear mention of whether the employer has or has not provided a safe
system of works for the inspection of plant, but in the author’s opinion this
does breach Section 2 (2) (a) of the Health and Safety at Work Act where plant
should be inspected and maintained using a safe system of work provided by the
employer.

Also, Oddjob’s actions of assembling the charabanc and not
carrying out thorough checks to ensure health and safety of employees breaches
Section 6 (3) of the Health and Safety at Work Act. Oddjob should have been
provided with suitable information about the charabanc to ensure it was
assembled correctly. The lack of information should have been reported to his
employers before he carried on with the assembly. The author believes that the
result of Choco’s death could result in charges of criminal manslaughter where
the employers could be prosecuted for the negligence contributed in Choco’s
death.

With regards to the owner and his sister’s comments in the
aftermath of the accident, Section 2 (2) (b) was breached as the employer has a
duty to provide PPE as and when necessary for their employees.

As this is a circus premises, the Local Authority will have
responsibility for enforcing health and safety legislation upon the entity. There
are several options that an inspector can proceed with in regards to the
breaches of the Health and Safety at Work Act in the Choco case study:

·      
An inspector can ask for the matter to be put
right on the spot.

·      
An inspector can issue an improvement notice,
whereby the employer is given a certain deadline, usually 21 days, to put right
the matter at hand. However, this is mainly for minor breaches or concerns but
it is an offence if an employer fails to comply with an improvement notice.

·      
An inspector can issue a prohibition notice,
whereby an immediate shut down of the process, operation or the entire site
where it is believed to be a risk of danger to personnel.

·      
An inspector could also issue a deferred
prohibition notice, whereby there is a short deadline given to rectify a low
risk before it escalates into a more serious risk. If an employer fails to
comply with this, then a full prohibition notice is issued.

·      
Or as a last resort, an inspector can take
prosecution as an action.

In the case of the breach going to prosecution, there are
various penalties that a guilty party would be handed depending on the type of
the court that should hand the penalty. For minor breaches of the Health and Safety
at Work Act, the Magistrates Court would be most suitable court to give the
verdict. For more serious breaches of the Health and Safety at Work Act, the
Crown Court would be most suitable court to give the verdict.

Below is a table of the maximum penalties per offence
between the two sets of court:

Type of Offence

Penalties from Magistrates
Court

Penalties from Crown Court

Offences under Section 2 to 6 of the Health and Safety at Work Act
 
Offences under Section 7 of the Health and Safety at Work Act
 
 
 
Offences under Section 8 of the Health and Safety at Work Act
 
Offences under Section 9 of the Health and Safety at Work Act

Up to 6 months imprisonment and/or a maximum £20,000 fine
 
Up to 6 months imprisonment and/or a fine not exceeding the statutory
maximum
 
 
Up to 6 months imprisonment and/or a maximum £20,000 fine
 
A maximum £20,000 fine

Up to two years imprisonment and/or an unlimited fine
 
Up to two years imprisonment and/or an unlimited fine
 
 
 
Up to two years imprisonment and/or an unlimited fine
 
An unlimited fine

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Assignment Question 2

In the Choco case study, there are two incidents that lead
to injuries where apparent breaches of civil law occurred resulting in the
accidents caused.

The author views both incidents as negligence under the law
of tort where the three main elements of negligence were breached:

·      
Duty of care

·      
Breach of that duty

·      
Causation

The first breach identified is where Sloppyfield charged
Benny for his whips, which Benny refused to use and later resulted in his
injury during a rehearsal. Benny’s employers had a duty of care to provide PPE
free of charge as it was part of the circus act. This duty was breached by the
employers and the causation of the incident was Benny’s injuries, although
always a risk in this line of work, could have been prevented if his employer’s
had provided the PPE free of charge. The author views this as personally liability
on the employer as they directly failed to protect their own employee, or
others in the case of the audience, of any danger by demanding money for the
PPE.

The second occurrence which resulted in another accident but
also subsequent death is of Sloppyfield not providing a safe system of work in
regards to maintaining and inspecting plant and equipment; and not resourcing sufficient
information for the assembly of the charabanc. There was a lack of English
written information for the assembly of the plant that should have been raised
with the employers to seek a resolution. The employee should have informed his
employers of concerns with the plant as it was intended to be used at a later
time by a colleague. This was a contributing factor to the death of the
employee at Sloppfyfield.

This occurrence is viewed by the author as negligence under
the law of tort. The negligent act of not providing a safe system of reporting
accidents in the workplace later resulted in the death of an employee. The
author views that as vicarious liability as it is a responsibility of an
employer to place a safe system of work for preparing and maintaining plant and
equipment; and a health and safety policy for occasions when employees must inform
their employers of accidents or identified defects in plant and equipment.

 

 

 

 

 

 

 

 

Assignment Question 3

In the author’s opinion, if Benny and Choco’s family were to
take court action against Sloppyfield, the most likely court that this would go
to would be the Crown Court because both cases are indictable offences where Benny
could have died from his injuries and Choco died after the consequences of the
company’s negligence regarding the health and safety at work act, which would
probably result in criminal prosecution.

There are only a few options of compensatory outcomes for
breaches of this magnitude in the Choco case study. They are:

·      
Compensatory damages – where the victim is
awarded money for the personal injury and financial loss due to injury. This is
the most likely outcome that could happen in Benny’s case due to his loss of
earnings of never being able to work again as a result of his injuries.

·      
Exemplary damages – where the defendant’s
behaviour is deemed to be unacceptable to the point that an additional lump sum
compensation is ordered to be paid on top of the standard compensation. With
regards to Choco’s death, this compensation type is the most likely outcome of
a civil claim, alongside the likely outcome of prison sentences of
Sloppyfield’s senior management.

The potential defence claims that Sloppyfield could resort
to in court could be:

·      
Consent – Benny and Choco both worked in a place
where there were risks of danger due to the presence of lions and moving
vehicles. They knew of these risks so they consented to work in that environment
knowing that injuries could be sustained at any moment.

·      
Inevitable accident – similar to consent, the
risks of danger were obvious to all parties and these two accidents could be
deemed to be inevitable accidents as long as Sloppyfield can demonstrate that
they provided the safety precautions.

·      
Contributory negligence – Benny exacerbated the
risk of danger by not using the PPE that was provided to him, albeit he was
being charged by his employers.

 

 

 

 

 

 

 

 

 

Conclusion

From the information in this report, the case study outlines
many breaches of health and safety, the outcomes of a civil law case and the
defences that the employer could use in court. The author believes that potential
criminal prosecution could result from the death of an employee at Sloppyfield
circus. The author also believes that the guilty parties would most likely face
paying a large compensatory sum to the claimants and face a lengthy prison
sentence to the negligence that was evident in the case study.