Rank: Guest 
|
Posted By Robert Randall
I have always thought (perhaps without sufficient study) that the "Due Diligence" defence was applicable to most, if not all H&S legislation except where there is a strict or absolute duty.
After some recent re-reading of the Fire Safety Scotland Regulations it would appear that the defence is not available where sofarp applies to a particular aspect of a regulation. I must admit to being a bit confused.
Can anyone lighten my darkness?
|
|
|
|
|
|
Rank: Guest
|
Posted By Raymond Rapp
Robert
Due diligence is a legal term whose definition may vary according to the context in which it is held. In its most basic form it can be used as a defence for doing what was in effect reasonably practicable. However, it is not necessarily a defence upon which to rely on in a strict liability offence.
In general terms 'due diligence' is similar to a 'duty of care' in that it has no unequivocal legal definition. Some laws include a due diligence defence and some others do not.
Ray
|
|
|
|
|
|
Rank: Guest
|
Posted By SteveD-M
The definition set out by the Court of Appeal (in its judgment in Edwards v. National Coal Board, [1949] 1 All ER 743) is:
“‘Reasonably practicable’ is a narrower term than ‘physically possible’ … a computation must be made by the owner in which the quantum of risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other, and that, if it be shown that there is a gross disproportion between them – the risk being insignificant in relation to the sacrifice – the defendants discharge the onus on them.”
|
|
|
|
|
|
Rank: Guest
|
Posted By Phil Rose
Yep
agreed, the due diligence defence does not take into account the cost/risk benefit equation, whereas sofarp does.
Phil
|
|
|
|
|
|
Rank: Guest
|
Posted By Richard Altoft
No expert but surely diligence means taking care so the "due" bit is limiting the "diligence" bit to something less than absolute diligence. Akin to "reasonable under the circumstances". After all Driving with due care as a traffic offence permits a defence that the care was reasonable and was all that was due in the circumstances.
Just a thought
R
|
|
|
|
|
|
Rank: Guest
|
Posted By Robert Randall
Thanks for your responses but I don't think any of the replies have addressed the question. perhaps if I rephrase it that will help.
I am asking if it is correct that the defence of due diligence cannot be used where the regulation requires the application of sofarp.
My reason for asking is the following paragraph from the Firelaw Scotland website:
102. Subsection (9) states that it is a defence for a person to prove that they took all reasonable precautions and exercised all due diligence. There are two offences where this defence is excluded by virtue of subsection (10). This is where either there has been an offence under subsection (1) relating to non-compliance with the employer’s duty in section 53 or where an offence under subsection (3) relating to non-compliance with a requirement or prohibition to which the person is subject to comply with so far as is reasonably practicable by virtue of regulations and which puts a relevant person at risk of death or serious injury in the event of fire. Regulation 11 of the 2006 Regulations is the only regulation imposing obligations ‘so far as is reasonably practicable’ and therefore breach of that regulation cannot be defended on the basis of due diligence.
This is seems to be saying that where a regulation imposes obligations ‘so far as is reasonably practicable’ the due diligence defence cannot be used. I would have thought that it was the other way round, i.e. the due diligence defence can be used where there is an obligation to comply sofarp.
|
|
|
|
|
|
Rank: Guest
|
Posted By Raymond Rapp
Robert
The law is a very strange beast. For example, the law in Scotland is not the same as it is in the rest of the UK. Case law can be used to provide guidance but even so, for an unequivocal answer to your question you will need to consult a specialist in the subject. General advice is the best I can offer.
Ray
|
|
|
|
|
|
Rank: Guest
|
Posted By Robert Randall
Thanks Ray but the H&S law in Scotland should be the same as in England and Wales since it is a reserved matter.
|
|
|
|
|
|
Rank: Guest
|
Posted By Phil Rose
Robert
Aside from any procedural differences in Scottish law, I thought your question had been answered pretty well and succinctly.
IF a regulation requires that something is done sofarp, then sofarp is the 'test' and as Steve has said that was defined long ago in Edwards/NCB. You can't use the defence of due diligence if the required standard to meet is sofarp.
Hope that helps
Phil
|
|
|
|
|
|
Rank: Guest
|
Posted By Robert Randall
Thanks Phil,
I didn't realise that due diligence and sofarp were mutually exclusive. In my innocence I thought that one could demonstrate compliance with sofarp by showing the steps that have been taken to comply, i.e. that due diligence is the effort that one has taken to implement reasonably practicable control measures.
|
|
|
|
|
|
Rank: Guest
|
Posted By Charlie0538
Hi, not to detract from such a stimulating thread ( and that's not being sarcastic either). The message posted by Robert previously. Re: Legal Tangle
Posted by Robert Randall on Tuesday, 17 March 2009 at 10:13
Thanks Ray but the H&S law in Scotland should be the same as in England and Wales since it is a reserved matter.
It should be the same but there can be differences. Case in point, No Smoking Law. I look after 400 outlets across the whole of the UK including Scotlad, Wales, Norther and Southern Ireland. How many different types of smoking signs do you think I had to obtain to ensure that these locations complied with the law. According to the comment above it should have been 1. However, I had to source 1 for Wales, 1 for Scotland and 1 for the rest to ensure that we complied.
On questioning this with local authorities, each EHO that I spoke to said and I quote "Our H&S is different to main land England and needed different signs to comply with their version of H&S regulations.
I have experienced the exact same with fire as well.
Again apologis for detracting from the main thread.
charlie
|
|
|
|
|
|
Rank: Guest
|
Posted By Raymond Rapp
Charlie
No apologies needed in my opinion. You have confirmed quite eloquently the point I was trying to make with regards to different legal jurisdictions.
Ray
|
|
|
|
|
|
Rank: Guest
|
Posted By Robert Randall
Fair enough Ray and Charlie there can be differences in application of the regulations (although the no smoking sign is not an example of that) but the point is that there should be no differences of interpretation because all jurisdictions are subject to the case law in point.
|
|
|
|
|
|
You cannot post new topics in this forum.
You cannot reply to topics in this forum.
You cannot delete your posts in this forum.
You cannot edit your posts in this forum.
You cannot create polls in this forum.
You cannot vote in polls in this forum.