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Posted By Andy Lightbody
What liability would a local office H&S Coordinator carry who is charged with policing the arrangements section of a national Company H&S Policy and unintentionally overlooked or incorrectly performed a risk assessment resulting in an accident?
They are charged with undertaking DSE assessments, Manual Handling assessments, general hazard identification and ascertaining contractor suitability to work in their premises.
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Posted By Karen Todd
A difficult one. Surely we have all made a boo-boo at some time?
It all depends on the circumstances. Is this person competent? Was this a one off omission of something that was perhaps not immediately obvious? Would this omission or error make the risk assessment not "suitable and sufficient"?
More importantly, has the risk assessment now been reviewed and corrected in light of this accident, and appropriate control measures put in place?
What about the rest of the risk assessments this person has carried out? Are they OK? How is their performance generally?
I'm sure this was a one off lapse and that the person concerned doesn't need to be persecuted. They will already feel bad enough that their apparent failing was a factor in the accident.
However, if their performance is regularly not up to scratch and there is a question over their competence, that is another matter. Maybe they need some more training in that area? Maybe more resources are required? Who can they ask for help?
Karen
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Rank: Guest
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Posted By Dave Wilson
From a ' civil liability 'point of view he would have none as his employer is vicariously libale for the torts of his employees, as long as they are working within the scope of their employement.
from a criminal view if they do something which they know they sould not be doing and it is a breach of statute law they could 9in theory be prosecuted under H&S legislation but more likely the employer would be prosecuted as they did not give the proper training instruction etc etc.
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Posted By David Sinclair
I'm afraid I disagree on the matter of civil liability.
I agree that it depends on whether or not the individual was in the "course of their employment".
However, just because an somebody is an employee and on the face of it (prima facie) they appear to be doing what they are employed to do, it does not automatically mean they are in the course of their employment.
Consequently, it does not automatically follow that the employer is vicariously liable.
Vicarious liability would depend on for example:
i. is the co-ordinator an employee?
ii. the terms on which the co-ordinator was engaged (i.e. is the role expressed within their contract of employment?);
iii. to what extent was the individual "negligent" or in breach of his statutory duty? (the employer must be able to put forward the arguement that it did not employ somebody to breach health and safety law);
Increasingly, not only the HSE but insurers are looking at individual liability.
In the case of insurers, if it can be shown that an individual is liable for an accident and his employer is not vicariously liable, the insurer may be able to avoid the claim.
Regards.
David
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