Article Business Practice Loss Prevention

BGS Question and Answer

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BGS – Legal Obligations Regarding Drilling

Many Members of the AGS received a letter on the 31st May referring to legal obligations regarding drilling and the submission of borehole logs to the BGS. Clarification was sought to ascertain the legal position with regard to boreholes drilled for the purposes of soil analysis for engineering and scientific purposes for the construction industry.

Are there any legal obligations for submitting these records to the BGS?

Roderick Bowie from BGS replied:

“The legal obligations in England Scotland and Wales only apply to those boreholes covered by the Water Resources Act and the Mining Industry Act.  These include some types of monitoring boreholes and geothermal bores  This does not cover boreholes drilled for engineering or construction purposes although we would be pleased to accept this type of information and already do so from a wide variety of different sources including the Geotechnical Industry.  In fact recognising this gap in the legislation the Government did encourage local authorities to deposit this type of information with us, the aim being to help to ‘add to the value of the advice given by the Survey’.  Part of the contractual arrangement between the Highways Agency and their Consultants/Contractors is that a full copy of the factual sections of any report produced as part of their Ground Investigation work is supplied to the Survey. This has included for some time the digital data in standard AGS format.

Many companies are concerned about passing client information to the BGS, but we can and do keep information Commercial in Confidence if requested and some of our donors write into their contracts that data will be deposited with us if the clients don’t object.

There is different legislation in Northern Ireland where all boreholes over 20m are notifiable and records must be kept irrespective of the type or reason for drilling.”

Uncategorized Safety

Putting Safety First

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The Corporate Manslaughter and Corporate Homicide Act 2007


This new Act came into force on 6th April 2008.  An offence is committed if the manner in which an organisation manages or organises its activities causes a person’s death and amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.  This is a corporate crime and not an individual crime.  There is now no need to identify a person controlling or directing the mind of an organisation, who is also guilty of the offence of gross negligence manslaughter, before the corporation can be convicted of the same offence.  The only sentencing option available to the court on a corporate manslaughter conviction will be a fine.  However, it is envisaged that considerable stigma will attached to a conviction. In addition senior management might feel compelled to resign and if they do not resign there are likely to be grounds for dismissal of some or all of the senior managers responsible for the gross breach of duty.

Details of the ‘new’ offence

The way in which the organisation is managed by its senior management has to be a substantial element in the breach of the duty of care.  It is a matter for the judge to establish whether a duty of care is owed.

Factors to be taken into account by the jury are whether there has been a breach of any relevant health and safety legislation, the seriousness of the breach and how much of a risk of death was posed by it. The jury may consider whether the culture, policy, systems and procedures in the organisation encouraged failure to comply with health and safety regulatory legislation or guidance.

Senior management means either those who play a significant role in making decisions about how the whole or a substantial part of the organisation’s activities are to be managed or organised, or those who play a significant role in the actual managing or organising of the whole or a substantial part of those activities.

Under Section 9 of the Act it is open to any court convicting of corporate manslaughter to make an order, called a remedial order, requiring the organisation to take specified steps to remedy the breach, to remedy any matters which contributed to the cause of death, and to remedy any deficiency in the organisation’s policy, systems or practices relating to health and safety.

Under Section 10 of this Act the court has a power to order an organisation to publish the fact that it has been convicted of the offence, to specify the particulars of the offence, the amount of any fine imposed and the terms of any remedial order made.


The Act is clearly a reaction to a long held belief that those who put profit before safety at the expense of lives should suffer a sanction more significant than can be imposed by the Health and Safety at Work Act 1974. The clear target at the time of the consultation and publication of the bill was large organisations whose activities cost life where there should have been no such risk.

The offence will now be committed if the breach that is a substantial cause of the death can be placed at the door of senior management who make the decisions about how an organisation is run from a strategic level, or is made by those at a senior operational level.  The Act is not designed to produce a prosecution in circumstances where appropriate strategic management exists, and appropriate operational management exists, but a significant failure is made at a junior operational level.

A more detailed version of the above article will be incorporated into the AGS Loss Prevention Working Group Tool Kit, but until then, if more details are required, please contact Berrymans Lace Mawer on the AGS Legal Helpline.

Article Business Practice Loss Prevention Safety

Defence cost in criminal prosecutions

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It is probably common knowledge that fines arising from Criminal Prosecutions for Health and Safety breaches are not covered by a designer’s Professional Indemnity Insurance Policy.

Fines therefore have to be paid out of the company’s assets.

Defending a Health and Safety prosecution can be difficult as the burden of proof is with the defendant to show that he has complied with the relevant legislation- it’s not for the prosecuting authority to establish in what way the legislation has been breached.

Consequently defending criminal prosecutions can be very expensive and may in fact exceed the possible fine that may arise.

This often results in the designer pleading guilty on the basis of getting a reduced fine even though he feels there was no breach.

Although the fine cannot be met by a Professional Indemnity Policy, the defence cost can be.

Many consultants are now considering that a significant feature of a particular PI policy is the ability to recover these defence costs.

Note that not all PI policies offer this cover and the decision to defend a prosecution will rest with the insurer who will look at the merits and likely success of a defence.


Ewan MacGregor
Griffiths and Armour



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We have now been a member of Ground Forum for a number of years and the Committee receives regular reports from the AGS representative (usually the Chairman). Most of the matters have been very broad and general as you would expect from this sort of group but the foundation has now been formed and there are some significant initiatives now being developed.

The members of Ground Forum are :

Association of Geotechnical and Geoenvironmental Specialists (AGS) British Drilling Association (BDA) British Geotechnical Association (BGA) British Tunnelling Society (BTS) Federation of Piling Specialists (FPS) Engineering Group of the Geological Society (EGGS) Institute for Mining and Metallurgy (IoM3) Pipe Jacking Association (PJA) UK Chapter of IGS (IGS)

The group was formed to be an umbrella organisation for all ground based associations and to give them a collaborative voice on issues that affected all the industry. It is important to note that members of the Forum have access to the Construction Industry Council and that CIC and other very high level policy making bodies consider Ground Forum to be their route to the associations, societies and hence the professions. We have to make sure that we take advantage of that route to pass our issues and questions back up to the higher authorities.


1) Insurance

Since the problems of September 11th 2001 the insurance market has reduced in size and the problems of obtaining all types of insurance from Employer’s Liability to Professional Indemnity have increased. Discussions between the BTS and the Association of British Insurers have taken the tunnelling industry from a point where tunnel construction was uninsurable to an agreed code of procedures on which insurance can be based.

This form of collaboration between the Association and the Insurance body may well become a common process in the future for all the member groups unless the insurance situation eases.

The development of this draft (at the moment) code is to promote best practice and insurers will require everybody to comply with it. The document will be supplementary to existing legislation and is now well underway towards a more complete draft.

FPS have also had discussions with insurers and the main causes of increased premiums have been given as September 11th, Stock Market performance and catch-up for the last 30 years.

Following the BTS code development there was discussion on codes of conduct in general and all Societies have been asked to submit any documents that they have to see if the whole situation could be eased by the development of a general “Geotechnical Code of Conduct”.

2) Research and Development

Government funding for research is driven by global issues and the EEC is now moving towards large grants for collaborative research between a number of parties.

The “blue-sky” research is not being funded.

The proposal from Ground Forum is to organise a high level seminar with representation from Government, manufacturing, design organisations etc. contributing. All members of Ground Forum would have input and the objective would be to try to influence “UK Limited” research into Ground Engineering in general.

The raising of the profile of Ground Forum is also an aim, not just for self promotion, but to increase the awareness of the importance of the ground-based disciplines.

I hope that AGS Members see this as a conduit to influential places and people and if there are any issues that can usefully be put through this route then we should start to develop them.

Keith Gabriel AGS, Member of Ground Forum