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Posted By Tony Brunskill
I often read in these forums statement like "A friend of mine runs" "an Aunt owns" "My mate is"......."and have asked me for a safety policy/Risk Assessment/COSHH Assessment/MH Assessment/Other. Has anyone got a version I could have/copy/borrow etc."
My question is to what extent are the parties liable for the content. Bear in mind there may be no commercial gain from any of the parties. Could the person providing the information to the thread originator be liable? Could the person providing the information to the "Aunt/Uncle/Mate/Other be liable?
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Posted By David Bannister
If we provide advice we are assuming the role of competent person. If we ain't competent...
There has been at least one instance of a H&S consultant being successfully prosecuted for providing incorrect and insufficient advice. There was presumably a follow-up civil claim too.
My advice is to stay within our competencies. If anyone feels this is incorrect advice I am open to other points of view.
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Posted By J Knight
Hi David,
I agree with you, as it happens, though IANAL and there may be formal legal implications here. I suppose I often assume that any advice given here will be tested against other sources, but maybe not,
John
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Posted By lewes
It may well be in some T&C somewhere on this site stating that any advise given is given on the pretence that it is the own personal opinion of that person (if that makes sense).
Likewise I am always willing to listen and I take everyones comments on board. I then make up my own mind what is the best option/information/action necessary based on this.
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Posted By Raymond Rapp
I doubt that in reality there would be substance for a claim relating to poor advice.
A Civil claim for duty of care would fail because they would not be able to prove the respondent owed them a duty. The advice is given free.
The person asking for advice should ensure where possible that advice or the person who is gving it are bonifide. Therefore coupled with the above paragraph I cannot see a criminal charge resulting from any duff advice.
Sleep tight and don't have nightmares.
Ray
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Posted By Bob
Ray, when you say :
a Civil claim for duty of care would fail because they would not be able to prove the respondent owed them a duty. The advice is given free
would you mind if i disagree a little?
Yes, the plaintiff's action would fail if it was brought for breach of professional duty for, as you say, having paid no fee, the defendant was not engaged in a professional capacity
It seems to me however that he might well succeed if he brought his action under the banner of just plain old negligenge. Under the general duty of care, every individual quite simply has a legal duty to his fellows to regulate his actions so as not to cause them injury or damage. This duty does not go away purely because there is no professional fee involved. Ray, I'm afraid I'm siding with David on this one
As ever though there is no difinitive answer as it would be up to the court to decide according the particular circumstances before it on the day. I'd be interested if anyone on this board knows of a legal precedent here?
Another point - the relative/mate in asking for help is clearly relying on the consultant's superior knowledge & skill in the field of health & Safety. Never mind the legal position, surely from a moral standpoint you should use that superior knowledge & skill to ensure that such advice is not defective?
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Posted By Catman
Bob
Fully agree with your moral standpoint but in law is the neighbourhood principle not stretched a little as this is potentially a window on the world?
Where would the liability stop?
Not sure myself.
Cheers
TW
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Posted By GeoffB4
That pools forecaster in the Sun has misled me again, I've wasted my money on his tips. He said he was certain Fulham would win. That was his opinion he said, and he's been in football for years, and he is very experienced. He's got some qualifications in coaching as well so he must know what he is doing. He's very highly respected, and writes books about it.
Mmm, shall I sue or what?
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Posted By Bob
I don't think the window is a wide as you fear Catman as the neighbourhood principle is tempered by the principles of remoteness and forseeability.
The test is not simply whether the damage is the direct consequence of the act but whether the defendent could have reasonably forseen the consequences of his actions. If the court considers that those consequences could not have been within his contemplation at the time of his act the action will fail. In this way the couts regulate the floodgates in a fairly practical way.
Thanks for your support on the moral issue by the way
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Posted By Dave Wilson
Think of it this way, if a bloke you didn't know from adam, down the pub gave you advice could you sue him if it was wrong?
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Posted By Bob
Geoff,
You would't succeed mate!
An action for negligence can only succeed where there has been injury or damage.
And before you say anything this doesn't include injury to your pocket or damage to your pride!
(Can I suggest you put a pony on Man U for the Championship)
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Posted By Catman
Found this in a Canadian study related to law on the internet,
'In the case of negligent provision of information, it is now established that if, in the
ordinary course of business or professional affairs, a person seeks information from
another, who is not under a contractual or fiduciary obligation to give the information, in
circumstances in which a reasonable man so asked would know he was being trusted, or
that his skill or judgement was being relied on and the person asked chooses to give the
information without so clearly qualifying his answer as to show that he does not accept
responsibility, then the person replying accepts a legal duty to exercise such care as the
circumstances require in making his reply.' 123
Source - Heather Black, "Responsabilité en matière d'édition 123
électronique" (Department of Justice of Canada) http://canada.justice.gc...ustice_AE/black_fr.html.
Fun stuff eh!!!
As stated earlier we should advise within our remit and with morals in mind anyway, so this should never be an issue.
But this may deter some from 'having a stab' or at least if you are going to have a stab, word it as such.
Any lawyers in the house?
Cheers
TW
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Posted By Ken Dickson
Hmmm…..
I, being competent to provide professional advice on H&S, do by brother a favour and help him with some H&S point in his ailing business. For speed I seek help from this forum. Some kind soul provides the help and I pass that on rightfully taking full credit. From following my advice, one of his employees is seriously injured.
My brother is liable as the employer. He also ahs a duty to source competent safety advice… me! He regulations mention nothing about a commercial arrangement. My brother (and his employee) followed my advice to the letter. I have been professionally negligent as I agreed to provide the advice to the business, at least by implication, and it has been shown to be wrong. There are some defences against this but they are all rather weak. The kind soul who gave me the help had no real idea how appropriate it was and presumably expected me to make a professional assessment of its value. He/she has not been negligent.
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Posted By RA
I am sure any half decent law court/HSE inspector would laugh in the face of someone saying their management system failed all because some guy from an IOSH chat forum gave a risk assessment for their work.
If the accident/failure is noticed on your doorstep- it rests with you to prove how YOU have attempted to implement an effective system. If you borrow something and use it- then it is up to you to ensure that it is working well before use.
Competency has been discussed many many times on this and other H&S forums- if someone is relying totally on unknown persons assumptions/work as a basis in how they perform their task then their level of competence would most certainly be up for questioning.
Do not get me wrong there are many individuals on this forum who provide advice that is exceptional- but I always double check it before I use it to ensure that it is firstly compatible for my field and secondly adhering to current legislative requirements.
That rant over- roll on 5pm- ooh a nice wee glass of Bushmills will go down well tonight!!!
RA
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Posted By Catman
Ken
What would the situaiton be if your brother got the information on here himself?
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Posted By Dave Wilson
Remember that anyone can post on here from timbuctoo to crawley they do not have to have the slightest interest / experience / competence in safety so it would always be prudent to check.
Just like if you believed that Borat was an actual person and believed that what he says is true, then you are a fool, sorry to any believers just like Santa and the tooth fairy!
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Posted By Catman
What are you saying about Santa???????????
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Posted By Bob
Thanks for the research Catman, nice to hear it from another source. Probably the best way forward for everyone is to refuse to get involved, mate or no mate.
(any chance of doing some research for Dave W and his ****** up mate down the pub)
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Posted By Bob
Final point before I go for a couple of cold ones (& apologies to Tony for changing the subject) if any of you guys could add anything to my post 26th Oct - Fire Risk Assessments in multi-occupancy buildings, I'd ve very much obliged. Particularly if anyone's conducted one on behalf of the landlord.
Thanks in advance,
Bob
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Posted By Ken Dickson
Hmm (again) ….
Let’s be clear. Nobody is going to be legally liable for any hints, tips, help, guidance, pointers, or even advice they give on this forum.
If my brother by-passes me and seeks help from this forum direct, even a day-one trainee HSE inspector is going to realise, rather quickly, my brother has not discharged his duty to ensure there is competent safety advice available to his business.
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Posted By Raymond Rapp
Are h&s practitioners now giving legal advice?
I am no 'legal eagle' but I suspect the jurisprudence of caveat emptor applies.
Ray
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Posted By Bob
Ray, I'm not a H&S practitioner, furthermore neither I nor anyone elso on this thread is attempting to give legal advice. If you read the comments again I think you'll find that people are just wanting to put forward their own particular point of view.
Also, the principle of caveat emptor only applies in the law of contract (to contracts of sale in particular) and has nothing to do with the tort of negligence
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Posted By Lee Onslow
hi all
i dont think the advice given could be used in this way, it is given without having the full picture to assist the person in looking in the right direction.
they would then have to apply it to the situation, something which we could not possibly do with the limited information supplied.
you would hope this is the case as you are only attempting to help someone.
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Posted By Raymond Rapp
Bob
Chill out, it's Friday. My tongue in cheek remark was not aimed at you or anyone esle that matter.
I was of course illustrating the philosophy rather than the pragmtic approach of caveat emptor.
Ray
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Posted By Bob
You are spot on Lee, the purpose of this forums is solely to provide H&S professionals and other interested parties with a platform for discussion and the sharing of ideas and information.
The intention is just that and certainly not to be technical reference library for Joe Public.
(interesting to see though that IOSH protect itself with a Liability Disclaimer for all that appears on this site, and rightly so)
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Posted By Bob
Sorry Ray, think I'm just irritable from waning alcohol levels. Going to put that right straight away however!!
Have a good 'un
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Posted By GeoffB4
Bob, just to make sure we are all singing from the same hymn sheet:
The general test of liability requires the plaintiff or claimant to prove that:
the defendant owed a duty of care to the plaintiff/claimant;
the defendant breached that duty of care;
this breach caused loss or damage to the plaintiff/claimant; and
the defendant should compensate the plaintiff/claimant for that loss or damage.
Note 'loss or damage, not just injury or damage', so if there is a case, remimbursement would be possible.
But just so you know Bob, like Ray's it was also intended as tongue in cheek, so don't take it too seriously.:-)))))
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Posted By Bob
Geoff, the only thing I want to take seriously at the moment is a couple of cold ones but, as I'm sure you must know by now I just can't resist the bait!:
The meaning of 'loss or damage' has been very clearly defined in the law of negligence. Take it from me Geoff that pure economic loss (ie where no injury or physical damage is involved) is not recoverable.
Having said that in 1982 this position was slightly modified in Junior Books Ltd v The Veitchi Co Ltd where a pure financial loss claim was allowed. Owing to the very special circumstances of this case it is highly unlikely to be followed in the future though so in reality the position is that you are not entitled to recover pure financial loss.
Sorry, couldn't resist that!
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Posted By Tony Brunskill
Thanks all for your contributions. I am coming down on the side of Catman's researched answer rather than opinion. If the case establishes precedent I am rather inclined to think that PI insurance would be prudent. I agree that any HSE inspector is unlike;y to accept that the Competent Adviser requirement is satisfied by logging into the Fora but in all honesty the criminal side is not my main concern. More of an issue and far more complex is the civil risk. The management regs require that you explicitly note in your arrangements your competent adviser, I have yet to see a safety policy that referred to the IOSH Fora. But stranger things happen in log cabins in the arctic.
Have a good weekend, after you check your PI.
Tony
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Posted By GeoffB4
Nice one Bob.
So my next discussion point is:
A statement from a lawyer specialising in claiming financial loss compensation.
"If you are the victim of inadequate advice or improper conduct we may be able to help you to claim compensation for any losses that you have suffered. A professional negligence solicitor specialises in claiming compensation if inadequate advice has resulted in the loss of money. It is a regular occurrence for lawyers, accountants, architects, surveyors, valuers and other advisers to be sued by former clients due to the provision of inadequate advice or improperly performed services."
Your turn.
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Posted By Bob
Christ Geoff I was nearly out of the door then.
What you're describing is breach of professional duty rather than breach of the general duty of care. See my first post for details.
Over to you
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Posted By Advanced Safety
Charge for everything and use the money to obtain good P.I.
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Posted By Adrian Watson
Tony,
Naughty, naughty! You've actually asked two questions.
1. Can somebody be held liable for information posted on these forums? No; IOSH has cautioned that this information does not constitute advice; merely opinion to be used at your peril!
2. Can somebody be held for liable be liable for advice given to a friend? Yes, you can, if you intend the person to act on it. You are not bound by fees; that would be a breach of contract for lack of exercise of reasonable skill and care. The limit of who is liable in negligence is bound by what is just and reasonable (Capiro v Dickenson).
Regards Adrian
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Posted By Tony Brunskill
Adrian,
Thanks, is the reference correct? I found Caparo Industries v Dickman 1990.
Tony
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Posted By Adrian Watson
Yony,
My error, it is Caparo Industries v Dickman
Caparo Industries v Dickman was a legal case heard in 1990 by the House of Lords. The judgement adopted at least some of the concerns expressed in different common law courts at the two-stage test set out in Anns v. Merton London Borough Council. The three-stage 'Caparo' test required:
foreseeability of damage
a relationship characterised by the law as one of proximity or neighbourhood; and
that the situation should be one in which the court considers it would be fair just and reasonable that the law should impose a duty of given scope on one party for the benefit of the other.
It should be stated that once a case falls within Hedley Byrne v. Heller there is no further requirement for a consideration of whether it is 'fair, just and reasonable' to impose liability.
Caparo remains the relevant decision for the United Kingdom. It may be said that it differs from Anns in that the approach to each case is not from a general proposition of Lord Atkin's principle but from a consideration of the particular relationships which have previously given rise to a duty of care.
Regards Adrian
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Posted By Tony Brunskill
Adrian,
Thanks again.
Tony
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Posted By Bob
Adrian,
Interesing that you mention Hedley Byrne as this case offers us a solution to the 2nd part of Tony's question ie. where we may feel obliged to help a friend out in this way.
The bank gave an enquirer a reference as to the crditworthiness of one of its customers. Fortnately for them they made it subject to a clear disclaimer of liability. Subsequenty the customer went into liquidation and the enquirer sufferd a large loss.
The court held that, in the absence of the diclaimer, the bank would be liable saying that where a person makes a negligent statement and they could reasonably assume that the recipient would rely on it, liability exists.
So if we feel we have no option other than to help a friend out in this way, make it subject to a robust disclaimer.
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