Posted By Philosophical I was wondering if any of those that visited this forum in their search for inspiration and motivation had had chance to consider the implications of the recent Court of Appeal decision in R v HTM? This would very much seem to overturn Regulation 21 of MHSWR which states that employers cannot rely on any act or default of their employees in their defence. Interestingly in this case the HSE tried to argue that foreseeability was not relevant to a breach of section 2 and it would also appear that they suggested that risk assessment was not a definitive requirement of HSWA for that reason. This would seem to have the effect of levelling the playing field as how can an employer be wholly responsible for every action or inaction that an employee takes? Particularly when that action goes against any instruction or training they have had. Maybe we might actually see the enforcement authorities start to enforce Section 7 more rigourously now and maybe we might see improvements in safety performance on the back of it! But maybe I might just remain Philosphical!

Posted By David O'Hara I would like to read the full details of this case. Can someone point me in the right direction? Thanks David

Posted By Philosophical For details of this and other cases try this link. http://www.bailii.org/ With regard the questions raised in the first response I think this will not increase the costs for enforcement authorities as it simply allows an employer the ability to show that the accident was due to an employee failing to do what they were trained and instructed to do. They can use this as part of demonstrating that they had done all that was reasonably practicable. Currently, with reg 21 this is precluded. I see no effect on insurance premiums. With regard to employee training records - don't you do that already as I suggest that is a pre-requisite for good management. If you don't then I suggest you start to keep them along with appropriate job descriptions and person specifications as they go hand in hand.

Posted By Jonathan Sandler CMIOSH the question is what is foreseeable? is there now vacarious libilaty?

Posted By Jack I’ve just scanned through the details. Interesting case, which merits a more detailed look. My initial take is that as the employer did all that was reasonably practicable they were not in breach. Therefore, as there was no contravention, Regulation 21 was not relevant. Am I being too simplistic?

Posted By Jack My comments were about the Court of Appeal decision. Reg 21 didn't 'apply - - in the first instance'. The HSE thought it did and made that point in court. Fortunately it is the courts which decide and not the HSE.

Posted By Adrian Watson The court held that the duty cast on the defendant is a qualified duty and that reasonable practicability is therefore not a defence. As such regulation 21 of the MHSWR 99 does not apply. See paragraphs 30 and 31 of the judgement. Regards Adrian Watson

Posted By Adrian Watson True, but this reinforces a key point; the final arbiter of what the law means is the courts and not the HSE. Therefore, the HSE's view is not a definitive statement on the interpretation of the law unless the courts have decided on the subject. Regards Adrian

Posted By Jonathan Sandler CMIOSH My point on foreseeability is taken from para 10 which states: 10. Mr Matthews also relies on the inspection and enforcement provisions of the 1974 Act and the statutory inspection régime with its consequential powers, in particular the provisions relating to the service of improvement and prohibition notices which would, he submits, be difficult to implement if there was an argument as to forseeability of risk carrying with it, as it inevitably would, an element of subjectivity. and later in para 22 they go on to say : 22. In our view, Lord Goff’s analysis of what is the right approach, is the one which, on the authorities, correctly identifies the proper approach to the jury question posed by the relevant phrase. It is to be noted that he expresses the relevance of forseeability in a closely confined way. Forseeability is merely a tool with which to assess the likelihood of a risk eventuating. It is not a means of permitting a defendant to bring concepts of fault appropriate to civil proceedings into the equation by the back door; still less does it mean that the phrase “reasonably foreseeable” in itself provides the answer to the jury question. But it seems to us that a defendant to a charge under section 2 or indeed section 3 or 4, in asking the jury to consider whether it has established that it has done all that is reasonably practicable, cannot be prevented from adducing evidence as to the likelihood of the incidence of the relevant risk eventuating in support of its case that it had taken all reasonable means to eliminate it. and in summing up in para 31 it states: 31. It seems to us that that is the correct analysis. Even though a legal burden of proof in relation to that aspect of the duty is imposed on the defendant, nonetheless the breach is properly described in the indictment in the present case as we have set out in paragraph 1 above. It follows that the phrase “so far as reasonably practicable” is not a defence. Regulation 21 can have no application to it. Regulation 21 would appear to be an attempt to transpose Article 5.3 of the directive into domestic law. Whether it has succeeded in that regard is not a question that we have to decide in this case. All we need to say is that it has not affected the decision of this Court in Nelson. My question is this, What do the HSE plan to do next?

Posted By Jack Philosophical, Did they challenge 'a flawed piece of legislation' on simply appeal on the facts and on interpretation of the legislation?

Posted By Jack - - but, they concluded: Regulation 21 would appear to be an attempt to transpose Article 5.3 of the directive into domestic law. Whether it has succeeded in that regard is not a question that we have to decide in this case. All we need to say is that it has not affected the decision of this Court in Nelson.

Posted By Jonathan Sandler CMIOSH Now thats the point I would have liked to have made, but I anit so elequant with words, Im just a safety advisor, hey ho what do I know, Im still able to learn

Posted By Robert K Lewis One has to remember that while this is an important piece of judicial decision making it is not the trial result itself. Telescopic 9.1 metre high towers, were being used in an area where o/head power lines were in places only 7.5 metres above ground level. The HSE for some reason thought they could enforce an open and shut case on the employer, by using regulation 21, without having to fight the potentially difficult battle of whose assessment should have taken account of the risks present on site. For me reg. 21 always posed an odd situation whereby an employee could in some sense negligently or deliberately land the employer with a conviction no matter what the employer has done, short of dismissal on the premonition that something might be done, to assess and control the risks. Clearly though the HSE have no real belief in risk assessments however after the arguments proposed. The case prompts me also to think about the recent HSE Condoc on competence management yet again. In this sort of situation the employer would be needing to show how the operative competency was managed via training, monitoring, correction and discipline if arguments about operative contribution are to be sustained in court. This document clearly places attitude and behaviour into the arena of competency criteria - how often have operatives been corrected and re-trained following deficiencies in these areas will almost certainly be asked. Bob

Posted By Philosophical Tabs, I think you have hit another important nail on the head, or several actually. The first is regarding why should an employer bother investing in education and training of the workforce and providing instruction and information if this does not have a bearing on reasonable practicability and the assessment and management of risk? There has to be responsibility on an employee as well as the employer and until such time as this is recognised I think it will be hard to make further inroads into the current fatal accident rate. But that is just a very humble opinion! The second one is in relation to civil claims, the difficulty here will be the lower burden of proof, but there have been a number of recent Appeal Court decisions here that may also benefit.

Posted By Diane Thomason I'm confused that vicarious liability has been mentioned, as this is a criminal case. Doesn't vicarious liability apply to negligence cases - civil cases? I don't see the relevance to a criminal prosecution. Have I missed a point somewhere?

Posted By Philosophical Bob, Diane, I agree, it was introduced early on, but at the time I did wonder why it was introduced. But I guess this is a discussion forum and people are free to throw in what they consider relevant questions. Hopefully Bob's explanation has helped put this in perspective.

Posted By S Groch If anybody wishes to know the current state of this case, then please drop me an email on steffan.groch@dwf.co.uk. I am the Solicitor acting on behalf of the Defendant employer and so I can at least try to clear up any confusion on the case. Steffan Groch Partner and Head of Health, Safety and Environment DWF Solicitors

Posted By Robert K Lewis Tabs The problem is that this case is about employees undertaking their work for their employer albeit badly. Actual incompetence is very difficult to prove. On this basis there can be no real impact, if any, on VL. The determinations for contributory negligence will however apply as normal. Bob

Posted By Rob Yuill Report is here: http://www.bailii.org/ew...EWCA/Crim/2006/1156.html Rob