Posted By Ian G Hutchings Hi Sean This is a very difficult question and I am afraid that I am not aware of a definitive answer. I can recall one case when a consultant failed to undertake a suitable and sufficient risk assessment (wood working/saw machinery I think). I am not aware of clear guidance, because I think that the answer has to be considered and confirmed by both a client and the consultant. As a consultant I will usually consider a client's needs and my own competence regarding the work needed. I assess this based on 'if I miss something or get this wrong, what will be the outcome?' So the answer depends on risk. If I come across a new piece of machinery, I can usually use basic principles, contact colleagues who are experienced in the type of machine and pick their brains, and refer to HSE guidance, standards and past cases. In this sort of situation I will feel confident to advise, as I have pulled together enough advisory information. On the other hand there are situations that fall out of my range of experience, these could include things such as food hygiene, radiation, oil platforms and nuclear waste. In this case I rely on an expert associate who has clearly demonstrated experience and is qualified. With regard to section 36 in particular, I would be interested to hear peoples interpretation of this as it refers to 'other corporate officials'. Is this isolated to people under the client company's employ or does it stretch to others? Interesting thread. All the best Ian

Posted By maddog RM Sean, After an accident anyone involved in the lead up can be dragged into the circle of responsibility. Line managers especially over the last year or so have been prominent in the press and many of them have had fines of several thousand pounds. I have recently been through quite a lengthy process where I was interviewed by the HSE and solicitors after an accident. The IP was left disabled after a fall. One of the suggested possible contributing factors to the accident was the competence of the health and safety advice. I was cleared of any wrongdoing at an early stage before it went to court. Given this, I always recommend to H&S professionals to stick your hand up and tell someone if you don't feel comfortable about any area of your work. The stress that you go through in your mind doubting yourself even when you know that you are right is not worth it. the leading case for a health and safety professional is: The Fatty Arbuckles' Case or Lincoln City Council -v- Charles Ian Helmrich Mr H had been the Health & Safety Manager of Fatty Arbuckles for about one year and was based in Salford. The Company had up to 60 branches. On 18 August 1998, Mr T a 17 year old summer vacation student, employed by their Lincoln restaurant, was scrubbing the kitchen floor with water and a long-handled scrubber. The kitchen contained an old piece of electrical equipment which was in unsafe electrical condition. Mr T came into contact with the equipment and suffered a fatal electric shock. The Crown Prosecution Service decided it would not be appropriate to prosecute any of the individuals involved for manslaughter. At a later inquest the jury returned a verdict of unlawful killing. The CPS still maintained its decision that it would not be appropriate to prosecute Fatty Arbuckles (which was then in Receivership) or any individual. The Council decided to prosecute Mr H under section 7(a) (and section 33 (1)(a) and 37(1)) of the Health & Safety at Work Act 1974. He was alleged to have: (a) prioritised food safety rather than a new safety policy (the existing one was prepared in 1990); (b) failed to put in place an adequate system to ensure risk assessments were carried out; (c) failed to ensure specific risk assessments were in place before employing under-18s. After a trial before a District Judge (a qualified lawyer rather than a lay magistrate) in Lincoln Magistrates' Court, Mr H was found guilty, fined £3,000 and ordered to pay £3,000 prosecution costs. The judge said Mr H was somewhat of a scapegoat. But still convicted him!

Posted By steven bentham Sean In my view Section 36 is a difficult case for an Inspector to take. You will have seen at least one successful prosecution against a safety officer. I think professionally qualified safety consultants working to 'industry' standards may well be questioned when something goes wrong, but I would suggest unlikely to be prime targets for enforcement. Clearly the employer (your client) as duty holder is. If you have 'assisted' unsafe working through you negligent consultancy skills why should you not be considered for prosecution at the same time as the other duty holders? If you want to avoid meeting us Inspectors then the answer is to do you job professionally and document it has been done!

Posted By ken mosley On 19th December 2007 the HSE issued a press release entitled "HSE warns of the danger of not segregating the public from construction sites, following death of a member of public". At the present time,all across UK the 'Decent Homes' programme has construction works being carried out in thousands of properties with the tenants resident. Sect.3(1) of HSWA and reg.13(6)of CDM 07 requires contractors to keep non employees and unauthorised persons out of the site. 20 years ago LAs and housing assns decanted the tenants whilst the work was done, thus complying with the top of the hierarchy of risk control ie. remove the risk. Now for commercial reasons tenants remain in-situ, with the work done around them. Contractors are required to manage issues over which they cannot exercise control, for example operatives will wear dust masks and ear protection where required, but a contractor cannot make the occupier wear the same or insist they leave the premises. There is also anecdotal evidence of tenants being injured. Is a blind eye being turned at the behest of commercialism or am I progressively becoming more cynical with advancing years?

Posted By Sean Turner My thanks for your responses and the cases mentioned. I thought this issue would be a well trodden patch of ground as it's likely to have had more than the odd one of us wake in a cold sweat from time-to-time. It is easier for me to understand instances where a consultant has been prosecuted for acting beyond the limits set by their qualifications and experience. You should know your business, and as importantly, know what you don't know, it being important to know one's own limitations when practising. I was a little more concerned with instances where a consultant misses a machine or other issue during an inspection, which I think is an easier mistake for any of us to make. Both 'Crim' and 'maddog' mention cases or concern in this regard, and I wonder about the circumstances in which Fatty Arbuckle's safety manager made his mistake that warranted prosecution. Headlines saying "Safety officer misses guard and gets nicked for it!", may be apocryphal but I wondered what cases there have been. Coming from an inspector, Steven's advice to "do your job professionally..." (and document that you've done it.) doesn't help me very much. As caselaw often illuminates the meaning of the wording of sections of the Act, it is useful to know where the courts have chosen to draw the line over the years, the Devil being very often in the detail. And I speak as one having been both sides of the fence in the last 17 years, having been an HM inspector myself, university H&S advisor and just recently a consultant. HSE's advice to small businesses at http://www.hse.gov.uk/sm...sinesses/must/advice.htm gives a little more idea of good, poor and bad advice but less than I'd have thought. The terrain is better mapped by insurers in relation to civil claims on Professional Indemnity Insurance (PII) policies. I think this is an important issue, as we try to practice conscientiously, treading lightly between the boundaries set by the IOSH's code of professional conduct, PII policies, s.36 (and other bits) our own fallibilities and the expectations of our clients. I particularly liked the article in SHP last year that talked through the legal traps encountered in contracting with clients. Section 36 and others applying to consultants' practice might be a good one for SHP to throw to our legal commentators for a similar article, perhaps. kind regards, Sean

Posted By Sean Turner Ian, Thanks for letting me know. I found the HSE guides, which are brief, as you say. I will be very interested to read IOSH's guidance when it comes out - any idea when they intend to publish? regards, Sean

Posted By Sean Turner Kieran, Very interesting. Is this the difference between telling people what to do and how to do it (authoritative) and helping them to figure out how to do it themselves (facilitative)? Thank you for this, I'll see if I can track down something from Mr Heron which goes into a bit more detail. regards, Sean