It is a good question but I doubt there is a simple answer! There is an argument that once an accident has occurred it can no longer be considered unforeseeable, which has some merit, but I suggest it should not be taken too literally because all accidents and consequences are possible - just that some are more probable than others. Again, all accidents have the potential for a serious injury. Thankfully most have minor consequences. Taking into account a 'worse case' scenario is in itself problematic, because health and safety is managed normally through probability of an outcome and not the worst outcome. The exception might be where there is a high risk or the outcome could vary between a minor injury or death ie coming into contact with electricity. There is a tendency to knee jerk when an incident occurs, particularly if it was deemed unlikely in the first place and/or a tragic outcome. Lessons should be learnt but what weight should be given, or liability if you prefer, to a consequence that was not reasonably foreseeable? From a criminal perspective only the court can really decide whether the controls were appropriate to the risk. That said, the law often does not fully appreciate a risk without injury and therefore the focus of the event is often on the consequence. Hindsight is often biased by even the most astute of people.

I appreciate the difference between criminal and civil law. However, I recall one time when I was sitting on a "driving without due care" case when a pedestrian was injured to the extent that they were permanently in a wheelchair as a result of the incident. We had to make a decision on guilt or not on the basis of the facts and, once found guilty, had to sentence on the basis of to what extent there was evidence of a lack of care and the level of that lack of care in his driving. The result of the lack of care had to be excluded from the decision making (albeit difficult!)

As some have alluded to, there is a difference between criminal and civil law liability. They have different objectives and thresholds of guilt. The civil law via a personal injury claim is generally more concerned with redress for the victim as opposed to retribution by the state. Hence civil law liability is less onerous and more generous towards the victim. Indeed, it has developed into an 'art form' propagated by injury compensation lawyers requesting risk assessment, evidence of training, etc.

Here we go eyes to the sky the car boot thread!!!!! I started it so I’ll have a say here – it should not affect the outcome of liability, however it would certainly effect emotions on a site such as this. With regards forseeability and the perception of risk did not the recent tangerine viola case go some way to clearing these muddy waters? I did have a meeting with our loss adjusters regarding ‘carboot-gate’ I’m not posting on here though at the risk of being banned from ever posting again – anyone interested PM me.

I tend to agree, there shouldn’t be any link between severity of injury and liability. However, consider the situation where the victim suffers a serious/permanently disabling injury. A claim is made against the defendant who is then found to have no liability for what happened. Recovery of the (perhaps not inconsiderable)medical costs and special damages must then presumably pass to the NHS/DW&P/local authorities? Being able to establish liability with duty holders reduces financial burden on public sector, and sends the message out to industry that government won’t fund negligence. Therefore, perhaps there is greater scrutiny of DOC for severe/high cost cases? As a corollary to this, many low cost cases may never look in detail at DOC because a quick 'without predjudice' settlement is agreed in favour of a legal and potentially costly challenge?