The Rail Safety Summit  2015 RAIL SAFETY SUMMIT 2015

The Rail Safety Summit  2015 SEAN ELSON Partner, Pinsent Masons LLP

The Rail Safety Summit  2015 LEGAL H&S DEVELOPMENTS 2015 Watch This Space Sean Elson Partner Pinsent Masons LLP

The Rail Safety Summit  2015 FOR TODAY Removal of fine limits in magistrates courts Sentencing guideline proposals Revision of CDM

The Rail Safety Summit  2015 Sentencin g developments

The Rail Safety Summit  2015 SENTENCING DEVELOPMENTS Limits on fines in the magistrates’ court ends S.85 Legal Aid, Sentencing & Punishment of Offenders Act 2012 Offences committed post 12 March 2015 Magistrates’ no longer restricted to £20K for each offence Consider what this means: –Magistrates could imposed multi-million pound fines – how likely is this? –Will have significant impact on tactics and strategy – will benefits accrue for large companies in trying to keep less serious cases in the magistrates’ court?

The Rail Safety Summit  2015 SENTENCING – A DEVELOPING THEME There is no good news (for dutyholders) in relation to sentencing developments! Now an additional liability to pay increased court costs Proposals to introduce sentencing guidelines – if adopted will result in a game changing level of fines for large and very large companies

The Rail Safety Summit  2015 OVERVIEW The Sentencing Council published its consultation on introducing sentencing guidelines for all health and safety offences and corporate manslaughter on 13 November 2014 Consultation ended 18 February 2015 – guidelines likely The proposals for fines are far in excess of current levels Key issues will be level of culpability and seriousness of risk harmed

The Rail Safety Summit  2015 DEFINING CULPABILITY Level of culpability extremely important Very High Deliberate breach or flagrant disregard of the law High Fell far short of the appropriate standard Medium Fell short of standard in a manner that falls between descriptions in high and low culpability Low Did not fall far short of appropriate standard

The Rail Safety Summit  2015 ISSUES RELEVANT TO CULPABILITY High –Failing to put in place measures recognised as standards in the industry –Ignoring concerns raised by employees or others –Failing to make changes after prior incidents –Allowing breaches to subsist over a long period of time Low –Significant efforts were made to address risk but inadequate on this occasion –No prior event or warning indicating a risk

The Rail Safety Summit  2015 WHAT MAY THE PROPOSALS MEAN? Fines for large (over £50m turnover)/very large companies could be substantially higher (NB: Fines in relation to rail related cases have been relatively high anyway) The extent to which processes were in place as opposed to an isolated lapse may become a litigation battleground Establishing whether culpability was “low” will be very important in setting fines Even more important to show existing procedures are in place and are effective/what do others in the industry do? Very large companies may fall outside the ranges in the Guidelines and “all bets are off”

The Rail Safety Summit  2015 CONSTRUCTION (DESIGN & MANAGEMENT) REGULATIONS 2015

The Rail Safety Summit  2015 KEY CHANGES Principal Designer role introduced CDM 2015 new L Series Guidance from HSE Change in notification criteria Removal of strict “competence” requirements CDM Co-ordinator role abolished Increased client responsibility 6 month transition period from CDM 2007

The Rail Safety Summit  2015 NOTIFYING PROJECTS – SIGNIFICANT CHANGE Requirement to “notify” a construction project to the HSE will change Criteria –Work scheduled to last longer than 30 working days and have more than 20 workers working simultaneously at any point in the project; or –Exceed 500 person days But – notification is now an end in itself – it is no longer a trigger for additional duties such as a construction phase H&S plan or appointment of a co-ordinator/principal contractor

The Rail Safety Summit  2015 TRIGGERS & NOTIFICATION – CHANGE OF MINDSET A construction phase H&S plan is now required on all construction projects – no matter how small Where there is more than one contractor then a principal designer and principal contractor must be appointed – in writing

The Rail Safety Summit  2015 MORE THAN ONE CONTRACTOR - THE CLIENT’S LEGAL DUTIES Appoint the principal designer Appoint the principal contractor Must take reasonable steps to ensure that the principal designer and principal contractor comply with their duties Provide the health & safety file to the person acquiring a structure if they dispose of their interest

The Rail Safety Summit  2015 CLIENT DUTY TAKEAWAY A CDM client must take “reasonable steps” to ensure that PD and PC comply with their duties (e.g. for the PC - throughout the construction phase) CDM 2007 Regulation 9 – take “reasonable steps” to ensure that the arrangements made for managing the project….by persons with a duty…..are suitable to ensure etc. A wider responsibility – what is the HSE guidance?

The Rail Safety Summit  2015 PRINCIPAL DESIGNER DUTIES: MORE THAN A CDMC ? Must plan, manage and monitor the pre-construction phase and co-ordinate H&S matters Plan work stages and estimate the time required to complete them Take account of the general principles of prevention (construction, maintenance & intended use) Ensure other designers comply with their duties Ensure co-operation between parties Must assist the client in the provision of pre-construction information and provide to others Must prepare the H&S file and ensure that it is reviewed and updated

The Rail Safety Summit  2015 PRINCIPAL DESIGNER – DURATION OF APPOINTMENT Client duty is to appoint a PD with control over the pre-construction phase PD need not remain throughout the life of the construction phase – though may do so (CDM both CDMC and PC at all times until end of the construction phase) HSE draft guidance recognises this If appointment ends the H&S file must be passed to PC who then review & update (Regulation 12(8) & page 36 draft guidance)

The Rail Safety Summit  2015 PRE-CONSTRUCTION PHASE REDEFINED A key change Pre-construction phase now defined as: “..any period of time during which design or preparatory work is carried out for a project and may continue during the construction phase” In other words – the PD role could extend up to practical completion to the extent that changes may be made to the design or use of materials (this was the HSE intention and is not an unintended consequence)

The Rail Safety Summit  2015 PD ISSUES Who will be competent? Not just CDMC with a different hat Will clients seek to impose role on PC or designers – consider contractual terms PI cover! How will this engage over the coming months?

The Rail Safety Summit  2015 PRACTICAL ISSUES Interactions (including PD) Appointments and PD on small works How will clients respond? What will this all look like? Construction Phase Plan for all construction works

The Rail Safety Summit  2015 CONCLUSIONS Not much change for PC’s managing construction phase Intended to enhance the Client role but will the reality reflect this The PD role will take some time to shake out Additional guidance might bring greater clarity – but does it need to be an ACoP?

The Rail Safety Summit  2015 RAIL SAFETY SUMMIT 2015