Agriculture is a hazardous industry. The Health and Safety Executive (HSE), the lead regulator for the agricultural industry, says that in the last ten years almost one person a week has been killed as a direct result of agricultural work. Even through the pandemic, more than a thousand non-fatal injuries occurred in the industry last year.
Most common causes of injury and death
Farmers and farm workers work with potentially dangerous machinery, vehicles, chemicals, and livestock, and work at height or near pits and silos. They are exposed to bad weather, noise, and dust. They also often work remotely, far from emergency services. Being struck by moving vehicles or moving or falling objects, falling from height, asphyxiation, or drowning, contact with machinery, injury by an animal, being trapped by something collapsing or overturning, and contact with electricity are the most common causes of fatal incidents on farms. The most frequent causes of non-fatal injuries are slips, trips or falls on the same level, being struck by moving objects, falling from height, contact with machinery, and being injured by an animal.
Long-term ill health or permanent disability also frequently occur in the industry because of exposure to chemicals, handling loads, and working with animals. This has an enormous impact on the life of affected workers and those who care for them.
Sustainable farming
Good health and safety practice is a fundamental requirement of a sustainable farming business and should be regarded as an essential part of farm business management. Considering risks and managing these in sensible ways should reduce the occurrence of incidents, and the resultant financial and personal costs.
Responsibility
The Health and Safety at Work etc Act 1974 places a duty on employers to protect their employees, contractors, family workers, temporary or casual workers and any other people who may be affected by the farming activities. This responsibility includes ensuring that all staff know the health and safety rules within the workplace. It is also important to ensure that workers understand the procedures to be adopted should an accident occur. All workers should be consulted to achieve a safe work environment, and ongoing training should be provided along with instruction in good practices, especially for occasional workers.
Planning ahead
Although not specifically required by law, developing an emergency response plan is also an important tool to ensure that incidents are responded to properly. This will give clear direction and help at a time when there is likely to be a great deal of shock and confusion. Such a plan should identify key contacts in a crisis, detail emergency actions such as contacting the emergency services, and having someone in place to co-ordinate with the emergency services and the regulatory authorities. Making a solicitor one key contact in the first instance may provide invaluable expert assistance throughout the process. The plan should be checked and reviewed on a regular basis. The farm should also ensure that there are several qualified first aiders within the workplace, and there should also be an accident book where all injuries occurring within the workplace are recorded.
When an incident occurs
As soon as an incident occurs, the emergency response plan should be put into operation. The most critical action is to attend to the person or people involved in the accident, and to call the emergency services if necessary. The nature of the incident also needs to be established quickly, and any imminent hazards should be addressed and made safe.
Key contacts should be informed, and each key contact should take responsibility for specified actions such as communicating with other employees, contacting the family of the injured person, and dealing with reporting requirements to regulators and insurers.
Dos and Don’ts
There is always a lot going on in the immediate aftermath of these incidents. It is important to try to get a solicitor on site as swiftly as possible to provide advice and support to those dealing with the incident.
Do make sure that as far as possible all relevant evidence is preserved.
Be sure not to release details of those involved in the incident until their next of kin have been informed. Also ensure that employees know not to make statements to the media.
If there has been a workplace fatality, the Work-Related Deaths Protocol gives the police primacy over the investigation. Otherwise HSE will usually lead the investigation. While it is important to cooperate fully with the emergency services and the police it is important to seek early legal advice to ensure that your position is properly protected.
It is also vitally important that procedures are in place to look after the welfare and emotional welfare of those who may have witnessed the incident. Dealing with a serious injury is a traumatic experience for all, but particularly for those who have witnessed the event or its immediate aftermath first hand. It is important to make provision for professional counsellors to attend site for group or individual consultations and make follow-up telephone hotlines available.
Informing and reporting
Any workplace death, and other serious injuries must be reported in accordance with regulations known as RIDDOR. HSE must be informed by the quickest practicable means without delay and a RIDDOR report must usually be submitted within 10 days of the incident. Reporting may be done by telephone or online: This may be done both in and out of normal office hours.
A record must be kept of ALL accidents including those that must be reported in terms of RIDDOR and any other incident that is not required to be reported.
Investigation
Once a RIDDOR report has been submitted, HSE are likely to conduct a site inspection and may commence a formal investigation. When a HSE inspector arrives at the farm to begin the investigation, obtaining legal advice is highly recommended. Full co-operation must be given to the inspector, but the owners and management of a farm need to retain as much control of the process as possible. If an inspector asks for documentation, this must be shown, and copies given on request. However, it may be advantageous for a solicitor to be involved in the process, and to provide advice, as HSE are not entitled to documents that are legally privileged. A list of documents handed to HSE should be retained.
The investigator may take statements from and ask questions of witnesses or others they believe have relevant information. Interviewees should ensure that such statements are entirely accurate and based only on fact before signing the statement.
Accident Investigation Report
Outside HSE’s investigation, it is good practice for the farm to organise its own accident investigation report to help it understand why an accident occurred. Acting on this understanding will be vital in preventing future incidents of a similar nature and to understand the causes and root causes of the incident. HSE inspectors can compel a farm to provide it with such a report unless this was commissioned by a solicitor because litigation was contemplated. In such a case, the report will be privileged and will not have to be handed over.
Over the next few weeks
It is possible that HSE will seek to serve, an Improvement Notice that requires remedial measure to be implemented. Failure to comply with this notice is a criminal offence. If an inspector believes that there is a risk of serious personal injury, immediately or in the future, a Prohibition Notice will be received. It will order that an activity is stopped until it has been made safe to continue. Again, it is a criminal offence not to comply with this notice.
If HSE believes that there has been a material breach of health and safety law, a Notification of Contravention may be received. This should set out the reasons for the inspector’s opinion; and specify what needs to be done to remedy the breach. This notice will also specify that a “Fee-For-Intervention” is payable to HSE. This sort of notice generally arrives within a few weeks of the incident occurring but there is no specified time frame for the sending of these letters.
Fee-for-intervention – must it be paid?
HSE’s hourly recovery rate under Fee-for-Intervention in 2022/23 is £163. These fees are generally invoiced quarterly throughout the life of an investigation up to the enforcement decision. They will include all work needed to identify any material breach and all work to ensure that it is remedied. HSE’s invoices can be significant and can exceed £100,000 over the course of a fatal accident investigation. Payment is due within 30 days of the date of each invoice and HSE will pursue any failure to pay as a debt through the civil courts.
These invoices should be carefully reviewed on receipt as there are often errors in these invoices. There is a procedure for raising queries with the invoices and for disputing such invoices. Disputes are heard by a panel that is ‘independent’ of HSE, with a lawyer as its chair and two other members with practical experience of health and safety management.
The aftermath of an incident
Any workplace incident, especially one that is fatal, may take a long time to be completely concluded. The intervening months and years may be very difficult for the injured person or the family of the deceased. Owners, managers and anyone else involved in the incident are likely to feel ongoing stress and concern whilst the investigation continues. This cannot be entirely avoided, but the situation may be eased by taking the following steps:
- Ensure that you work with a health and safety consultant to ensure that remedial measures are properly implemented.
- Involve mental health professionals to provide ongoing support to management and workers.
- Have a solicitor on board whom you trust, and who will look after your interests and guide you expertly through the long process until the matter is finally resolved.
