Posted By Peter F
Fellow professionals hope you have a good new year. How is it that reasonably foreseeable is quoted after an accident/incident? I thought this was hindsight or is it that it hindsight the accident/incident was reasonably foreseeable. I ask as i have just been informed by a solicitor that an incident was reasonably foreseeable. I think everything is reasonably foreseeable after it has happened.

Posted By John Cook
Peter

I tend to agree with Decimomal, lawyers have to iinclude the phrase 2reasonably foreseeable" if they didn't their client would probably not have a claim. At least not as substantial a claim if the incident is not reasonably foreseeable.

John

Posted By Kieran J Duignan
Peter

The weight of scientific evidence at a point in time is a valid criterion for what is 'reasonably foreseeable'.

In that sense, what is 'reasonably foreseeable' does change over time, according as scientific opinion changes in the light of experimental and 'real world' evidence.

So, it's not really a case of legal casuistry so much as scientific evolution or even revolution on occasions. This has been evident with regard to the gradual recognition that 'error' is commonly due to flaws in design or management strategry rather than merely operator carelessness or worse ('violation').

Posted By Peter F
Geoff,

that's the point I am making once something has happened people will then say it was reasonably foreseeable, but it at times only becomes foreseeable with hindsight.

Posted By Kieran J Duignan
Correction: I should have typed 'Kim Burton' in my last entry.

Posted By Raymond Rapp
Peter

Whether something was foreseeable or it appears to be with the benefit of hindsight is a moot point. Some examples that have been highlighted by other posters are clear cut and hence easy to comprehend. However, there are many other examples where the benefit of hindsight is far more complex, particularly where there is a chain of events.

For example, following the capsizing of the Herald of Free Enterprise and during the subsequent trial of P&O Ferries, other shipping executives admitted in court that the practice of leaving port with the bow doors open was also carried by their company. They apparently were not aware of the potential disastrous outcome through this practice, which was in effect an industry wide non-conformance.

At the time of the Zeebrugge disaster it was widely believed that this was a one-off tragic incident. Now, was the cause of disaster reasonably foreseeable or with the benefit of hindsight?

Ray

Posted By Tom Doyle
Kieran,
Thank you very much for the direction to HSG48. Excellent information.

Cheers and Happy New Year.
Tom Doyle
Industrial Safety Integration

Posted By Colin
The Herald case seems to go straight to the heart of Peter's original question.

It seems a fairly rational proposition that if an event is not foreseeable, it is unlikely that steps will be taken to address the possibility of the actual occurrence of the event?

The Herald case was heard three times and in each case the Court was unable to establish foreseeability. The accusation was based upon the operation of an unsafe system.

The criteria by which the officers and the company were measured was that of the prudent officer, faced with an obvious and serious risk.

A number of officers who had served on the Herald and its sister ships gave evidence to the extent that none of them perceived the risk, or even a real possibility, that a ship could sail with its doors open. One of the officer's was one of those alleged to have reported previous incidents, although this evidence was to an extent discredited.

The Coroner, in his inquiry, outlined the requirement for a verdict of unlawful killing as; an obvious and serious risk; that was recognised as such by the officer; who was inconsiderate or indifferent to the risk, or decided to take it.

Importantly, the Coroner added that 'a failure to recognise that there was such a risk at all would not by itself amount to negligence of the required degree'.

The judge hearing the later manslaughter case, in the light of hearing evidence from a number of the officers, questioned the extent to which the risk could be said to be obvious.

The prosecutor contended that the officers failure to recognise the risk did not alter the obviousness of the risk. This is perhaps the hindsight argument?

The tribunals did not find the officers or the company culpable due in the main to the evidence of the witness officer's all of whom testified that they never envisaged circumstances whereby a ship could sail with it's doors open.

It seems that the evidence of the witness officers provided the basis for the assessment of the 'prudent officer'? If these experienced and hopefully 'prudent' officers had not perceived the risk (it was not obvious, at least to them), then the risk would not have been obvious to the officers in question and the company, who relied upon the advice of its seagoing officers. As such neither were culpable in relation to the accident or the charges brought. They all believed that the system was safe.

In hindsight it does seem fairly clear that a ship is likely to capsize if it sails with its doors open, and that a robust system of management/technology is required to ensure that it should not. But, I guess that's hindsight?

Posted By Dave Law
I think what this boils down to is duty of care, to prove negligence you must prove there was a failure to exercise duty of care.

The basis of duty of care:
"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor"

As the solicitor needs to prove you were in breach of your duty to take reasonable care to make a succesful claim he needs to prove the accident was "reasonably foreseeable" as a defendent it's your job to prove the accident wasn't reasonably foreseeable.

You could of course argue the accident was only foreseeable with hindsight and thats where the courts/tribunial come in to decide who is right.

The bottom line is if the accident wasn't reasonably foreseeable then there wasn't a breach of care so no case.

Good Luck

Posted By GeoffB4
Kieran,

I have to say I greatly admire a number of your contributions. Equally I have to say I sometimes have no idea what you are talking about.

But at least they make me think, so keep up the good work.

Geoff

Posted By Kieran J Duignan
Thank you for your constructive observations, Geoff.

In response to your request, perhaps the simplest cosntructive response is twofold:

1. the serious fallacy in your reasoning ( and that of the anonymous HSE inspector you cite) is to assert that because an event follows another, it is valid to assert that it causes it

2. Appreciative Inquiry can be a powerful method of resolving organisational paradoxes.

:-)