Proved by recent case: your legal position is more defensible when you have efficient
Health & Safety management systems and procedures in place to identify and manage foreseeable
risks.
In Health & Safety legislation the reverse burden of proof has often lead practitioners
to feel that they cannot defend their position once an incident has occurred and
harm has been caused.
A recent ruling in the Court of Appeal gives employers reassurance that where they
have acted to assess the risks for every foreseeable occurrence they will not end
up with fines or with custodial sentences.
What was the case?
The prosecution was brought following the death of an employee of a large engineering
company, carrying out work on a platform on the river Thames. During dismantling
work the deceased removed the bolts that were keeping his safe working area together
and was tragically crushed to death.
The worker had gone against the company’s Health & Safety procedures in a number
of ways and acted in a way that could not have been expected.
However, the HSE still prosecuted two large engineering companies for failing in
their Health & Safety obligations.
At the trial, all the witnesses attested to the fact that the company had undertaken
competent risk assessments and had suitable and sufficient Health & Safety procedures
which were known to their employees and enforced by supervisors.
The court accepted that the actions of the deceased were wholly unforeseeable and
could not have been guarded against.
The Judgment
In taking the decision to dismiss the case the appeal judge said:
"The only apt, albeit unhappy, phrase is that he went on a frolic of his own."
"There is no evidence that such an act should or could have been foreseen in the
circumstances as they existed on site; quite the reverse."
In dismissing the case he took the view that the HSE’s failure to provide any evidence
that proved that it was the actions of the defendant that exposed the deceased to
the risk from which he received the fatal injuries was the critical factor.
What does this mean for your company?
The case is a tragedy for the individual and the company involved. Yet, it demonstrates
that your legal position will be more defensible if you invest in the appropriate
Health & Safety management systems with suitable and sufficient risk assessments and identification
of foreseeable risks.
The point is: with the right Health & Safety management tool, you can not only improve
your effectiveness and protect your staff, you can also get further protection against
criminal conviction and civil action if something goes wrong.
While the HSE may have been unhappy that the case they brought was not accepted,
the ruling undoubtedly encourages employers to take Health & Safety seriously.
Even for those organisations who have previously placed less emphasis on Health
& Safety, getting efficient management systems in place, and using them appropriately,
can be your "get out of jail free card" if the dice roll against you.
Reducing the likelihood and impact of accidents
HSSmart® can help you towards an effective Health & Safety risk and compliance
management system, so you can identify those foreseeable risks and hazards.
You can readily cover all your workplace H&S risk needs; know about risk causes,
connections, and trends across your organisation; and manage risks with minimum
resources.
What's more, you can create defendability through audit trails detailing answers
to "who, what, when" questions.
To explore how you can use HSSmart® to optimise your Health & Safety and Risk
management systems, just call us on 020 7397 1457 (quote "DEC-HS1") or complete
the form below