The Health and Safety Executive (HSE) investigates all cases of hand-arm vibration syndrome (HAVS) reported under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR). The HSE has a record of successful prosecutions following such investigations and substantial fines can be imposed, particularly for larger employers. This article highlights the benefits of expert evidence for defending such cases, and also to mitigate and to persuade the Court to select lower offence categories when applying the Sentencing Guideline.
HSE’s Prosecution Record on Hand-Arm Vibration
The HSE has been active over the last decade in prosecuting employers for health and safety offences concerning exposure to hand-arm vibration. Information on the HSE’s successful prosecutions over the previous 10 years is published in its Public Register of Convictions. A search of this database reveals that, since 2010, 25 employers have been convicted for breaches of one or more of the Control of Vibration at Work Regulations 2005 (the Vibration Regulations).
The total number of vibration-related convictions is greater than this because some cases are brought solely under Section 2(1) of the Health and Safety at Work, etc. Act 1974 (HSWA), and not under the Vibration Regulations. While these cases are included in the HSE database, it is not possible at present to identify them through a keyword search (possibly due to a fault in the public version of the database) and the HSE has refused a Freedom of Information Act request for a full list of relevant cases. We have identified 12 such cases from blogs and press releases, bringing the total to 37, but it is likely that there are more which we have been unable to identify.
Employers are required by RIDDOR to report to the HSE all cases of hand-arm vibration syndrome (HAVS) and vibration-related carpal tunnel syndrome (v-CTS). The HSE has a stated policy of investigating all reported cases of occupational disease.
Experience from cases in which we have been instructed suggests that the majority of hand-arm vibration-related prosecutions arise from RIDDOR reports and there is little or no evidence of prosecution in the absence of a RIDDOR report. The starting point for most investigations is, therefore, evidence of ill health (with the implication of poor past or present control of exposure and risk) rather than direct evidence of high levels of exposure and a failure to control the risk. It is reasonable to conclude that RIDDOR reporting (attracting the HSE’s attention) is likely to be more common among the larger, better resourced, employers, with in-house health and safety expertise and occupational health service provision. Other employers may also be exposing their employees to high levels of vibration without adequate control, but they may be less likely to detect cases of HAVS and report them to the HSE under RIDDOR.
The HSE’s internal guidance on inspection and enforcement for hand-arm vibration advises inspectors that, following a RIDDOR report of HAVS, prosecution should be considered where:
- there are multiple cases of HAVS, or a single case at an advanced stage;
- there are, or were, daily vibration exposures regularly at or above the Exposure Action Value (EAV); and
- the exposures are, or were, not controlled so far as reasonably practicable, to prevent harm.
The Sentencing Guideline for health and safety offences requires the penalty to take into account an assessment of the offending employer’s ‘culpability’ (the seriousness of the breach), and an assessment of ‘harm’ based on the likelihood and seriousness of the risk caused by the offence as well as how many were exposed to the risk and whether the offence was a significant cause of actual harm.
Having taken the decision to prosecute an employer, the HSE is likely to argue that the seriousness of the harm risked by the defendant is Level B under the Guidelines (an impairment with a substantial and long-term effect on the ability to work or carry out normal daily activities, arguably an appropriate description of HAVS at an advanced stage) and that the likelihood of harm is High (based on a sufficiently high level of exposure and a failure to control the exposure/risk and/or a failure to provide adequate health surveillance). This will give a rating of Harm category 2 and, if a number of people were exposed to the same risk or have developed HAVS, this may be raised to Harm category 1.
The assessment of culpability and harm is applied to a sentencing table determined by the annual turnover of a defendant’s business, ensuring that for the same offence a larger organisation will receive a substantially greater fine than will a smaller entity. The starting point for a High culpability, Harm category 1 conviction (before consideration is given to aggravating and mitigating circumstances and discount for plea is £250k for a small company with an annual turnover of less than £2 million, while for a large employer, with an annual turnover of £50 million or more, the penalty starting point is a fine of £2.4 million. If the harm category can be kept at category 2, then the starting points reduce by £150k for a small company, down to £100k, and for a large company by £1.3 million to £1.1million. A report from an experienced and authoritative expert can help to persuade the Court that lower culpability and/or a lower harm category would be an appropriate basis for sentence.
Expert Evidence for Defence or Mitigation
For a successful prosecution, satisfying the HSE’s criteria for prosecution following investigation of a HAVS RIDDOR report, the Court should be able to conclude, on the evidence, that:
- there are (or were) regular and frequent daily vibration exposures demonstrably in excess of the EAV, above which the Vibration Regulations require employers to implement measures to reduce the exposure to the lowest level reasonably practicable (which could still be above the EAV), and to provide appropriate health surveillance; and
- the vibration exposures, and the associated risk to health, are (or were) not eliminated or reduced to as low as is reasonably practicable.
In our experience, the quality of the evidence on which the HSE relies in these cases can be variable, and it may be beneficial for a defendant’s legal team to instruct an expert to investigate the extent to which the above criteria are met.
Where the HSE’s investigation has been triggered by a RIDDOR report of one or more cases of HAVS, the diagnosis may have resulted from the defendant’s health surveillance programme. While there may be no reason to question such a diagnosis, there may not have been a detailed investigation of previous employment, and the extent to which individuals have been exposed to vibration before employment with the defendant. In some industries, older employees may have been exposed to vibration in their early years from long-obsolete work practices for which the current employer should not be held responsible, but their condition may have come to light more recently, through health surveillance or education on HAVS provided by the employer. Expert evidence rebutting the suggestion that harm has been caused by the defendant may not be sufficient to defend, but it could prevent an escalation of harm category which, as described above, is likely to have a material impact on the penalty considered by the Court.
The prosecution’s evidence regarding vibration exposure may be based largely on witness statements taken from workers, rather than on an assessment made by an inspector during a site visit. It is well established (based in part on research evidence published in 1999 by the HSE) that operators of vibrating tools and equipment tend to overestimate the daily duration of vibration exposure, often referred to as ‘anger time’ (or ‘trigger time’). If the employer has failed to carry out a suitable and sufficient vibration risk assessment, then this may of itself constitute a breach of the Vibration Regulations (although arguably not sufficient, on its own, to justify prosecution); however, if it can be shown that the risk was low, then this can help to reduce the assessment of culpability and/or of harm, which can again shift the offence category down, reducing the fine. A site inspection by an expert instructed on behalf of the defendant, observing the use of vibrating equipment and, where necessary, measuring the vibration, may yield useful additional or alternative evidence relating to the level of vibration exposure, the resulting level of risk and (if required) options for reasonably practicable risk control.
Although the Vibration Regulations do not require it, some employers keep a daily record of their employees’ use of vibrating tools and machinery, logging the time spent each day with each tool. Notwithstanding the possibility of overestimation of ‘anger time’ (discussed above), evidence of this kind may allow the prosecution to demonstrate daily exposures in excess of the EAV or even the Exposure Limit Value (ELV). However, analysis of the data to establish the average or typical daily vibration exposure might reveal a pattern of exposure in which exposures in excess of the EAV or ELV have been rare, and the average daily exposure is low. While, again, there may have been a breach of the Vibration Regulations, expert evidence may be able to demonstrate that the risk of disease was low or even negligible. This might, for example, result in a potential downgrading of the Harm category from 1 to 4, which could result in a 10-fold reduction in the fine.
The HSE investigates all cases of HAVS or v-CTS reported under RIDDOR and has successfully prosecuted the employer in at least 37 cases since 2010.
Experience has shown that expert evidence is useful not only in defending guilt in appropriate cases, but also to persuade the Court to sentence on lower offence categories and to mitigate. A site visit can provide evidence of lower exposure and risk than is alleged by the prosecution. There is sometimes potential for an alternative analysis of the prosecution’s evidence to argue for a reduction in the Harm category. Expert evidence may demonstrate that even where there has been a breach of the Vibration Regulations, the severity of the offence does not meet the HSE’s criteria for prosecution. There is the potential, particularly for large employers, to reduce the fine by an amount many times the cost of the expert evidence.
At Finch Consulting we are regularly instructed (on behalf of either claimant or defendant, or more commonly on a single joint basis) to prepare expert engineering/liability reports for the Courts in civil claims for HAVS and v-CTS. We have also been instructed on behalf of defendants in regulatory cases involving prosecution by the HSE and it seems likely that these cases will continue to be brought for the foreseeable future, following RIDDOR reports of disease caused by use of vibrating tools and machinery. If you are considering instructing an expert, helpful and pragmatic guidance is provided in an article published on our website in September 2020 on How to get the most from your instructions to Experts.
Chris Nelson is a Principal Consultant with Finch Consulting, specialising in the control of risks from occupational exposure to vibration and noise. He has contributed expert evidence for the Courts in more than 800 personal injury claims and advises clients on compliance, risk management and good practice. Prior to joining Finch in 2007, Chris was a Specialist Inspector (Noise and Vibration) with the HSE.