Health & Safety

Preparing for The NEBOSH Diploma Exams & Case Law

The NEBOSH Diploma is about the practical application of ‘background’ theory and knowledge to occupational health and safety (OHS) problems.

Geek

Now I love a bit of science. The background theory fascinates me and the practical applications can be mind-boggling.

Many parts of the NEBOSH Diploma are very much concerned with the practical application of science and engineering to real-world OHS problems. COSHH is about the practical application of biology and chemistry to OHS. So is CAR. LOLER is about the practical application of physics and engineering to OHS. So is PUWER. So is DSEAR.

It is also about the practical application of legal principles. And psychology (safety culture and human factors). And maths (accident statistics, reliability, event tree analysis, fault tree analysis).

It’s Not Just a Test of Memory

Yes memory is important. But it is essential that you can apply what you can remember to practical situations. That’s what the examiner really wants to see. That you understand the idea. That you understand the principle. That you can explain why things are done. How things are done. In real-world situations. In practice.

To pick a specific example: the case law in Element A4 (Civil Law).

Remembering Case Law

Remembering case law is the bane of many a student’s life when revising for the Unit A exam. There is something about the memorising of names and legal principles that makes it inherently difficult for most of us.

Now there are lots of different ways of trying to remember information. For instance, most people will use repetition to try to make things stick. And you will probably be familiar with the use of acronyms (such as ERICPD or TILE) as memory aids. Unfortunately, not much use for the case law I’m afraid. Derren Brown has written about using a “memory palace”. Or going on a mental journey with memories scattered along the way (see here for a brief outline of the technique or google ‘memory palace, ‘memory journey’ or ‘method of loci’).

Personally I like to make up simple mental pictures. Cartoon scenes in my head that represent some of the key ideas.

For example, for the case law on vicarious liability I have a cartoon image in my head of an old fashioned milkman (in a dairy uniform with a peaked cap) running up a garden path towards a country cottage. And a vicar with a dog collar standing in the open front door underneath a lovely flowering rose growing on an arch over the door. The vicar has his hand up and is shouting at the milkman “Stop! We’ve got plenty”

Milkman holding bottles of milk to be delivered (black & white image)

Key words: rose, plenty and the vicar. Vicarious liability and Rose v Plenty.

With a nice image of a milkman delivering milk just to link back to the practicalities of the case (see here).

Though creating the mental image takes time, effort and imagination it can be very useful because once you have that mental image it doesn’t need to be repeated much to make it stick. So the creation process is very good at building the memory.

But remembering the list of case law alone is not enough.

Understanding The Case Law

If you simply state Rose v Plenty at the examiner they aren’t going to give you the marks. Because you need to use the case law in the right way in the context of the question. Instead, you need to show them that you understand what that case means. What the legal principle is. And what it means in practice.

Vicarious liability is the common law principle that one party can be held liable for the negligence of another. Specifically, in the context of occupational health and safety, the idea that an employer can be held liable for the negligent acts of his employees.

So if a worker is negligent and injures another person that other person can sue the worker’s employer using the principle of vicarious liability.

Rose v Plenty is the case that illustrates the general principle but also establishes the precedent that vicarious liability may attach to the employer even if the employee is carrying out their work in a way that the employer did not approve of. So even if the employee is not following the safe system of work, or working outside of their job description, the employer can still be fixed with vicarious liability.

For vicarious liability to apply there are a couple of tests that are used:

  • The worker must be an employee of the employer being sued. This is usually easy to prove because there is likely to be a contract of employment that shows this legal relationship.
  • The worker must be acting in the course of their employment. That is, trying to do the work of their employer and not off on frolic of their own.

Oh, and they must have been negligent. If the worker has not been negligent then there will be no vicarious liability.

This is where Rose v Plenty is an important case. It illustrates the principle that even when an employee (in this case the milkman) disobeys a rule (the dairy had a sign up about not using children to assist on rounds) the employee may still be acting in the course of employment (he disobeyed the rule and allowed a child to assist him – to deliver milk).

Applying The Case Law

Now this all sounds very theoretical and rather outdated. After all, Rose v Plenty dates from 1976! What on earth has this got to do with modern health and safety practice?

Well if you want a recent example of the practical application of vicarious liability in action look no further than the case of Meeta Patel v Homerton University Hospital NHS Foundation Trust (2017).

This case involved a pharmacist who was injured in a fall caused by a work colleague removing her chair as she attempted to sit down in it. The case was widely reported at the time and you can find various news reports about it (e.g. here ).

At heart the case illustrated the key elements of vicarious liability at play. A person (Ms Patel) is injured by the negligence of a worker (her colleague) and therefore the employer (the NHS Trust) will be liable.

There was no argument put forward that the event did not take place or that injury did not occur. There was no argument put forward that the colleague who caused the injury was not an employee of the NHS trust. There was no argument that the colleague had not been negligent.

The argument hinged on whether, in moving the chair, the colleague was acting in the course of their employment. The court decided not. They were, in effect, on a frolic of their own. And therefore their employer could not be held vicariously liable for their negligent act (see here and here).

The issue at the heart Rose v Plenty was used to decide the case: for vicarious liability to apply the negligent employee must be acting in the course of their employment.

In the case of the milkman; they were

In the case of the pharmacist; they were not.

Golden statue of woman holding scales to portray law against a sky background

Three Year Rule

Unfortunately for Ms Patel, in making this decision, the court was indicating its view that the colleague was personally liable for the injury caused. Not the NHS trust. I say unfortunately because the court reached its decision over five years after the date on which the event took place. And there is a three year limitation on personal injury claims. So it seems unlikely that any claim against the colleague would be possible.

And Finally Ronnie…

People get very hung up on case law in Unit A. Especially the case law relevant to the civil legal system (Element A4).

And rightly so because it’s in the syllabus and the examiner therefore expects you to be able to remember it and apply it. Rightly so to a degree.

I say to a degree because Unit A is about so much more than just case law. It is also about safety management systems, and accident reporting and investigation, and reliability, and consultation, and safety culture, and human error, etc., etc. And I have met dozens of students over the years who have spent a disproportionate amount of time committing the case law to memory to the detriment of other topics and issues in Unit A.

You must revise and look over the entire Unit. Not just the case law. Because there are 11 questions and only a few of them will be on the law and only a few of the marks in those few questions will be assigned to getting the case law right.

So do keep a sense of proportion.

Dr Jim Phelpstead BSc, PhD, CMIOSH

RRC Consultant Tutor