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Posted By Darren (Daz) Fraser
Hi all
I have just had a query from a director of the company who has a degree in law about what this particular section means.
I explained that in the case of H&S you are assumed to be guilty and must prove your innocence, whereas in 'normal' law it is the state that must prove you are guilty and you are assumed to be innocent.
Firstly, would you all agree with that simple explanation?
Secondly how would you explain it?
Needless to say the director in question has gone away to check that the info I have given them is correct, which I believe it is, however if I am incorrect please could someone kindly explain.
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Posted By Phil H
I think the term is strict liability - the burden of proof is on the company to show all reasonable steps taken etc. rather like driving without insurance - ignorance is no defence and it is up to the driver to prove he/she is insured rather than visa versa.
You are correct.
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Posted By CFT
Darren
My perception has always been of the 'reverse burden on sec 40 in so much it is for the accused to prove that it was not practicable or reasonably practicable to do more than was in fact done. And yes, I have always considered that under HSWA any employer accused under sec 40 is indeed assumed guilty unless of course they can prove otherwise.
All the best
CFT
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Posted By AHS
At present case law The Crown v Hatton Traffic Management Ltd has altered Sect 40 bringing it more in line with normal criminal law ie the prosecution have to prove that what the defendant did was not reasonably practicable.
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Posted By peter gotch
Daz
Onus is on the prosecution to prove all aspects of the case except what was reasonably practicable" or "practicable" where the burden of proof is reversed.
However, recent judgment in HTM case means that the prosecutor should provide some indication of what they think is reasonably practicable.
Basic principle of criminal law that you should have some idea of what you are supposed to have done wrong!!
Regards, Peter
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Posted By Raymond Rapp
Darren
My understanding of s40 is that it is the only defence to a charge under HSWA and case law dictates that the concept of 'reasonably foreseeable' is the only defence. An 'absolute duty' has no defence under s40 and is how the two doctrines are differentiated.
Most 'regulatory' statute law is by definition based on a strict liability (no fault) doctrine, unlike some other criminal laws. Strict liability is where the prosecution do not have to prove the mens rea (intent) and only the actus reus (act).
Incidentally, strict liability is not annotated in any piece of statute law, but rather interpreted as such by the courts.
I rest my case...
Ray
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Posted By Son of SkyWalker
Thank you M'lud
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