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Acceptable risks, or only until something goes wrong?
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Posted By P I Kinvig
I teach adventure sports now and then and an important element of the ‘fun’ is risk. Put me in a full harness, suspended from a helicopter, St Johns ambulance standing by and ladders secured in place up the side of a mountain and I won’t bother climbing it.
Now imagine though one day something goes wrong, as it eventually will, we are consciously taking risks remember so get away with it 999 times out of a thousand …..
Has anyone any experience of an enforcing body getting involved (in any industry) and after investigation deciding that yes it was simply an accident, an unfortunate consequence of the law of averages; no one to blame?
I rather think that despite all this talk of sensible risk assessments and what poor press we get as H&S professionals the reality is still that whatever you’ve put in your risk assessment it won’t be good enough, however you’ve managed it you’ll of made an error of judgement and whatever you may think somebody somewhere will be making a case/claim out of it.
Until we find a way of saying that unless they’ve been deliberately mislead, people are at time simply responsible for themselves I don’t believe we can complain that organisations are ‘going over the top’ and trying to eradicate every possible risk.
At my age I should know better but I canoe, fly a micro light, climb and race mountain bikes and I’m proud to work in H&S but I rarely take the chance of teaching others now – it’s not worth the risk!
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Posted By VJM
I don't know of anything happening where it was put down to an accident.
However during my NEBOSH they were telling a story of an inspector who served a prohibition notice on one of those fly around in a ball rigged to elastic bands type rides. Thankfully they won under the element of risk being fun, but as we know, you can't operate under a prohibition notice.
This was all despite the poor guy having all the correct documentation.
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Posted By RoseR
There was an accident in 2006 where a nine year old girl was killed in a canoeing accident on the River Wye. No charges were brought against the 2 men arrested in connection with it - the news articles aren't too indepth so I don't know any more than that. If you put 'Clayton' and 'canoe' into google you'll find local news reports.
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Posted By GeoffB4
Although not the same the principle is similar. Google 'hse myths' and have a look at the school teacher box. It puts it in perspective.
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Posted By John A Wright
If I recall correctly it was that accident or a similar one which was a case study that led to the Corporate Manslaughter legislation, so possibly today that canoeing company would be charged under the Corporate Manslaughter legislation.
You should also know about the concept of Volenti non fit injuria (Latin: "to a willing person, no injury is done") but in our language now interprets as "no injury is done to a person who consents" in other words if you sign a bit of paper saying you know you might be injured during an activity then you can't sue a company. Boxers do it, people on holiday sign these documents all the time. FI car drivers will do too, though maybe they also have to sign saying they are happy with the safety precautions that are being taken, maybe our Top Gear presenter did too, as far I know he is not suing anyone.
John W
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Posted By P I Kinvig
The ball incident is the type of thing I have quoted to me regularly and anther example of why even I who should know better feel nervous about taking responsibility for others.
I remember the regrettable canoeing incident, knowing the river there quite well. Not sure what the result eventually was though, google tells me that two local men were arrested but not what happend. I'll keep searching thanks.
So far I know of no examples I can use to encourage friends working with kids (and adults)to keep going and give others the chance to enjoy some of the daft things I do.
I'd always understood that the idea of signing a piece of paper to say you accepted the risks didn't stand up in this country? If it does then thanks, that really is something I can use to reassure people. Can anyone confirm this for me, it's clearly something I ought to know about and don't.
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Posted By RoseR
Oh and there was a case with a riding school that was sucessfully defended.. A child fell off a horse and broke something and the parent tried to sue. The riding school was able to show it had an H&S management system and controlled risks where possible but the activity was still inherently dangerous. The judge agreed and said the parents knew this when they sent their child for lessons, therefore the riding school was not at fault.
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Posted By Peter MacDonald
What you have to remember is when an accident does happen it will be investigated and the amazing power of 20/20 hindsight will be used to castigate you. This is when acceptable/ unlikely hazards/risks change to major or at least foreseeable hazard/risks. The same people who reclassify these risks may be the same people who observed the pre accident activity but unfortunately 20/20 hindsight only kicks in post accident. They will then beat you with the "all accidents are preventable" stick. Your fun will stop. These are the people who, with reference to an earlier posting don't believe in the Camel/icecream/air travel theory.
Cynical I know but true in many cases.
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Posted By GeoffB4
It must be human nature to pick out the exception and not the rule.
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Posted By water67.
I too head up mountains, at all times of the year. I am well equipped, experienced and know what i am about. i never go alone. I know the risks and I accept the risk. But I don't take risks I manage the risk to the best of my ability. To me that is the key. No one can eliminate all risk. particularly in the activities that are inherently higher risk: the type I take part in. But we should always be managing risks and not taking them. That's always been my view and it's what i have told managers, employees etc. all my H&S life.
And yes at almost 60 I should know better but i love it. especially the challenges. No better feeling than looking down from several thousand feet and thinking I did it.
Cheers
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Posted By db
Peter,
Do you have any examples of this or is it just a gut feeling?
My experience is that prosecutions are taken where there is evidence of an accident history and/or relevant guidance in place. I've seen more cases lost even where there has been relevant guidance and case law than cases brought with '20/20 hindsight'. Judges are not stupid people.
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Posted By P I Kinvig
I'd suggest managing the risks down to a level that you are prepared to accept for the paticular activity, then accepting the consequences when just occaisionally the residual risks rear up and bite.
My experience is that there will nearly always be a lawyer somewhere prepared to try and proove it was somebody's fault. If db is right and cases are regularly being thrown out on the grounds of 'you knew the risks' then great (assuming of course it wasn't actually negligence etc.) lets publicise them and perhaps some of the ambulance chaser will go away.
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Posted By db
There's a ditinction here between civil and criminal cases. I'm talking about criminal cases - and I'm not saying that they are being thrown out, rather only cases where it an accident is forseeable due to guidance or accident history are being pursued. I'm happy to have my view changed with examples...
The problem is, we will not get to hear of cases where there is no prosecution as a result of an accident... but there are many.
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Posted By Peter MacDonald
Db
Prosecuting lawyers are also not stupid.
I think it would be interesting for a issue of SHP's In Court section to have a)either a full section on failed prosecutions based on the employer haven been seen to take Reasonable precautions/actions and where the emloyee was at fault or b)at least 1 example a month.
I think this would be more balanced
Peter
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Posted By db
That makes the assumption that the prosecutors are stupid and actually take cases for which there is no clear evidence of a duty of care.
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Posted By Max Bancroft
I work in a college of art and design. The students are very inventive and they come to me with activities they want to do.
We do a risk assessment and then I decide whether we have done enough to reduce the riskt to an acceptable levl. Sometimes I think we can't reduce the risk enough (given the constraints of budgets and available equipment) and so I say no. At this point the student quite often asks if she can go ahead with the activitiy if she signs a waiver absolving the College of responsiility if things go worng and she gets injured.
My answer up to now has been that, under the HASAW Act, the waiver is irrelevant. We are responsible for what goes on in our premises. Of course, a student is not an employee but a member of the public allowed on to our premises to do a variety of activities which she choses to do.
Am I correct?
That's under criminal law. Under civil law I understand the waiver would be acceptable since they are choosing to do this dangerous activity.
Case law (both for criminal and civil aspects) would be really useful but there doesn't seem to be any.
Of course there is the further non-H&S issue of the media headlines "College allows student to jump off building without a safety rope - now confined to wheelchair". At this point the media would be off on a witch-hunt forgetting everything they had said about stupid H&S bureaucrats stopping people having fun.
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Posted By Peter MacDonald
db
change the word stupid to greedy and I agree.
If you've never seen or heard of a frivolous prosecution then your not looking hard enough.
Peter
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Posted By Raymond Rapp
Max
You are correct, as an institution you have both a legal and civil duty to look after those associated with your undertaking. A waiver is not worth the paper it is written on.
Of course students are free to take risks if they so choose (and do) and providing your institution do not coerce or condone it, then there is not much else you can do. Fact of life.
Ray
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Posted By anon1234
I know of a fatal incident a couple of years back where the police and HSE investigated and it ended up with no one being prosecuted despite there not even being a risk assessment in place. Obviously I can't give details of the incident or the company invovled (wasn't mine though, although the casualty was part of the same global company but a completely different division working under the control of the client).
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Posted By db
As I said, I'm willing to change my view with examples but none seem to be forthcoming.
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Posted By Max Bancroft I'm not sure if this is relevant/off thread but this case has just come to sentencing. http://news.bbc.co.uk/1/hi/wales/7386039.stmAfter HSE investigation, the Crown Prosecution Service decided not to prosecute because they thought that they were likely to lose and this decision was overturned after judicial review. It did not actually come to trial since the accused admitted the charge just before the trial for manslaughter. So we'll never know whether the case was strong enough had it gone to trial. Will one of the effects of the judicial review mean that more cases will now be brought by the CPS (& the PF in Scotland) since no-one in that field will fancy a judicial review and will now err on the side of prosecuting rather than not prosecuting - especially if for death and serious injury?
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Posted By Steve Cartwright
It will depend on the level of risk and precautions you have taken to reduce them.
Slightly different angle but here goes.
There was a case in 2004 Farmiloe V Lane Group and North Somerset Council.
Farmiloe who worked in a warehouse environment had a medical problem with his feet and was unable to wear safety shoes. EHO visited the site and spotted that he was not wearing safety shoes. Company explained the problem with his feet and that the employee was aware of the risks and has accepted them. EHO were not happy and threatened company with an improvement notice if they did not provide him with safety shoes or removed him from the working environment.
Company could not find an alternative safety shoe, ended up dismissing employee as they had no other job for him.
Employee brought a claim for unfair dismissal and disability discrimination. Employee succeeded in his original claim, however the company appealed. The EAT ruled that H&S Law over rides DDA and that the company was right to dismiss the employee.
I would not recommend using disclaimer forms either, company would still get prosecuted for breaches of H&S Law.
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Posted By P I Kinvig
My thanks to all the contributors to this thread. Seems to me that my underlying assertion is true - we talk about sensible H&S but feel that if we apply it we'll be at risk. If even we're not convinced there's a long way to go yet before the public is. I'm not sure that 'conkers bonkers' stories are any more than a distraction, the general opinion seems to be that if you get hurt it will be somebody else's fault. Whilst this continues then of course we try and eliminate every risk, most H&S professionals are paid to protect their company as well as people.
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Acceptable risks, or only until something goes wrong?
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