Can I add to your comment by mentioning "Human Factors" - the science of human beings and their interaction with systems.

It's a massive subject but can be used to study why, in the case of the ladder, why the individual used a defective one and why no-one else removed the defective ladder to prevent it being used.

Thanks for comments so far. MacDonalds got sued in the USA over a scalding from a seriously hot cup of coffee, and the person suing them intially got a multi-million dollar award. However, this was considerably reduced subsequently. Two aspects of the case were not well publicised. Firstly, MacDonalds had been previously warned about their excessively hot coffee. On the other side, the person concerned got in her car and put the cup of coffee between her legs. Durgh!

Widening the scope a bit, the current move towards reducing the sugar content of food is a case in point. One unfortunate result of this is that the previously recommended size of a can of pop for someone suffering diabetic hypoglycaemia is no longer sufficient. It would seem that we are all to be penalised for a number of people who don't take responsibility for their own diet. Even more worrying is that the food manufacturers will need to add stuff to compensate for the reduction in sugar content, to maintain its appeal to people. We can therefore look forward to an increase in artificial sweeteners, and the jury is still out on the effects of these.

Two words "management & supervision" - where either is found wanting it becomes the employers issue.

Employees only "flout rules/take short cuts" where the systems and support are not robust enough.

Where systems are good and supervisors poor you do see line managers being prosecuted (but these are infrequent as "suitable & sufficient" is determined by the court)

The first fundamental of Human Performance is that context drives behavior and the leadership in the organization creates the context that the worker operates in.

Hindsight makes us all geniuses.  Instead of “he should have done”....... ask “why did it make sense for him to do that?”.  If it makes sense for someone to take an action from how they interpreted the "context" they are working in it will make sense to someone else in a similar situation.  That’s why airlines use simulators to help with accident investigations, to see how others operate in similar situations.

Sticking your hands in machinery; if the person knew they would get hurt they wouldn’t do it, they probably did it before and cut all the corners to save time because the boss talks about productivity more that he talks about safety and the difference between a good idea and a bad idea is the outcome.  How many times did they do it before it became normal.  You always hear how safety is the number one priority, but priorities change (at the end of the quarter for example). 

Same with climbing a ladder in bad repair.  Where was the inspection regime, the worker was using the tools he is given, how do we know he never raised the concern and was told to just put up with it.    What context created by the employer drove these worker to make sense of sticking hands in machines or using dodgy equipment.

Also a "frolic of their own" can be miss understood.  It does not mean that they carried out an operation in a way that suited them, it means for example and electrician getting hurt doing a homer during work time and trying to pursue the employer for damages.  They must be acting on their own and for their own benefit.

An employers NUMBER ONE PRIORITY is to make money.  If you have conflicting priorities and your job relies on getting the work done which one are you likely to trade off for the other.  Businesses should VALUE their employees safety health and welfare rather than send mixed messages about what their priorities are.

All too often we want to blame, shame and retrain employees.  That’s how we have dealt with in the past, but workplace accidents still happen.  So until employers stop focusing on trying to fix the people making mistakes and instead focus on how they can change the context the worker operates in so that the sense making part drives the right actions, employers should remain accountable.

There are exceptions BTW http://health-and-safety-lancashire.co.uk/employee-prosecuted-by-hse-employer-not-to-blame/

Edited by user 09 January 2019 10:09:15(UTC)  | Reason: Link added

fairlieg - I think your interpretation of the defence of 'on a frolic of his own' is flawed. Yes, it could apply to the scenario you mention, but it can also happen if all reasonable steps have been taken and the employee still does something crazy (suitably trained and competent to do the job, given clear instructions reinforced by a supervisor, suitable equipment and guarding provided), in which case such a defence could be tried by the employer.

I am not suggesting that all of the blame is automatically placed on either the employee or employer, it will depend on the circumstances and events, but prosecutions of individual employees are very rare, and it seems to me that their responsibility is not taken sufficiently into account in far too many cases. Individual culpability is taken into account in civil cases, but not in criminal cases very often.

I agree that hindsight is a wonderful thing, but the things that employees do sometimes just beggars belief. Organisational culture can be a factor, but there again people do have brains and the ability to make rational decisions (although sometimes I wonder about this).

There's also something about apportioning blame in civil law which doesn't happen in criminal law. A murderer will never get their sentence reduced because the judge thinks the murdered person was partly responsible. Likewise in a criminal law H&S breach the courts view is that you either did it or you didn't; did the employer fail in their duty of care? If so, guilty, if not, not guilty.

Others have already pointed out why prosecutions under s7 are very much less frequent than those under s3; any remaining doubts should be assuaged by considering the meaning of the word 'ensure',

John

I did take your point Biker, and if somebody does something stupid I guess the questions to be answered start with Andy's comment: why did the employer employ a stupid person, and having employed them, why did they allow them into a situation where their stupidity could cause injury? Then there's 'ensuring' health and safety: did they reduce the risk SFARP, did they eliminate the hazard, did they employ technology and so on down the long list of the principles of prevention in the schedule to the management regs. And then, having done a suitable and sufficient RA, did they check that it was ever used? You know, PDCA and all that.

To be honest, when I read the news in the IOSH magazine it usually looks very much like the employer's fault; there's usually complacency or collusion with stupidity; poor job design, egregious cost-cutting or the like. I don't often see cases where I think 'that doesn't sound like the employer's fault',

John

Edited by user 08 January 2019 15:04:34(UTC)  | Reason: Hoist by my own petard

The problem with biker's ladder argument is that it is fundamentally flawed. He asks whether an employee should use a ladder when it is patently obvious that it is defective. What he neglects to  ask is wether an employer should provide a ladder when it is patently obvious that it is defective.

Patently obvious defects are only such when the competent choose to look

How many managers and supervisors regularly walk past what are patently obvious to the eyes of a trained H&S professional - eye wash station with missing bottle, faulty lighting, pillar drill with spindle guard removed, trailing electrical cables across walkways etc.

Refernce employing stupid people- how do you sift them out?

 I am genuininly interested in this as I have worked with some seriously dense people in the past ( one of who was a safety officer) who were all recruited through assessment and interview.

People are unpredictable and will do what seems, with hindsight to be really stupid stuff for no readily understandable reason.

May be this is why our jobs are so stimulating and exciting.

Originally Posted by: pl53

The problem with biker's ladder argument is that it is fundamentally flawed. He asks whether an employee should use a ladder when it is patently obvious that it is defective. What he neglects to  ask is wether an employer should provide a ladder when it is patently obvious that it is defective.

This is exactly the point.  Rather like these "Golden Rules" or "Cardinal Rules" you see, you know the ones if you break these rules you will be frog marched in front of your peers, humiliated, flogged and then retrained or fired.  All you would be doing is pushing accountability down on the workers and absolving management of all responsibility....."they know the rules, they broke the rules, they face the consequences"……….

This is probably another thread but should there be a management rule for each of the workers rules which ensures that the management ensure the conditions and context enables the workers to easily follow the rules...........

Like the case I linked to earlier the employer was able to demonstrate the provided the correct conditions, training, tools, equipment to do the job safetly so they avoided prosecution.  (although I think they would still be vicariously liable in a civil injuries claim)

Edited by user 10 January 2019 10:44:06(UTC)  | Reason: Not specified

I can think of a couple of reasons:

1. Employers are in charge of the work and the workplace. Being able to find an exemplarary workplace that bore no guilt for a subsequent accident to a person within its own wokplace is surely unlikely. The fall backs of ensuring competency AND adequate supervision would allow blame to attributed to the company in pretty much all circumstance. Also;
2. Companies have more money than individuals, therefore it is a bigger scalp and a greater fine can be imposed. Society as a whole is more accepting companies getting fined than it would be for lowly individuals just trying to make ends meet.

I remember a case back in the 1990s where somebody using a bandsaw (I think) defeated the guard and took his own arm off at the elbow. He was prosecuted and fined because the employer had a really robust management system in place, which was enforced to the point of disciplining workers who broke safety rules. It included daily checks on guards, strict instructions about using safe procedures, an hourly rate rather than piece-work (for safety reasons) and the whole shebang. One of the few cases of the sort I've read about,

John

https://www.healthandsafetyatwork.com/work-at-height/terrance-murray-reckless-scaffolder-sentenced​​​​​​​

Here we have the case of a “trained” MEWP operator being prosecuted and fined for not doing his job right- https://www.yorkpress.co.uk/news/3997380.York_cherry_picker_man___s___6k_bill/

as well as his employer

Originally Posted by: fairlieg

The first fundamental of Human Performance is that context drives behaviour and the leadership in the organization creates the context that the worker operates in.

Hindsight makes us all geniuses.  Instead of “he should have done”....... ask “why did it make sense for him to do that?”.  If it makes sense for someone to take an action from how they interpreted the "context" they are working in it will make sense to someone else in a similar situation.  

All too often we want to blame, shame and retrain employees.  That’s how we have dealt with in the past, but workplace accidents still happen.  So until employers stop focusing on trying to fix the people making mistakes and instead focus on how they can change the context the worker operates in so that the sense making part drives the right actions, employers should remain accountable.

But the underlying cause I feel comes down to underestimating the risk, overestimating our ability, or the immediate need, or being overtaken by emotion. There are lots of different personalities out there, some are, as a very good friend of mine used to say, '6 foot tall and bulletproof'. They believe they have superpowers. Others just think, oh it's only once, it won't happen to me....etc etc. They all perhaps hold degrees and are certainly not stupid, but momentarily act stupidly. Often the context is in their head. I will happily hold my hand up and say, I really didn't get that until I began properly studying this great discipline of ours.

We can all be guilty of throwing flowers at ourselves, thinking we would never act that way. Then on the way home someone cuts us up on the roundabout and for a few seconds, we drive like an idiot. I call it TTS. (temporary t___ syndrome, answers on a postcard please).

We have all met, I'm sure, an employee who would open a vein for their boss. Their eagerness to please trumps any awareness of risk. Or who hasn't at some time in their life felt:

1.  I can't complain again, I'd better just get on with it....

2. I'm not going to get this finished and I'll be in for it....

3. I need to do the extra hours, Yes I'm tired but the kids need new clothes....

4. If I get this done before the boss sees it he'll be over the moon....

5. If I can get this done quick, I can get home an hour early!...

etc.etc.

The employer has the responsibility to be the sane-thinking presence in the chain who stops the ways in which employees put themselves at risk. As Roundtuit says, 'management and supervision'. We made a law to say employers must blah blah SFARP' Putting systems in place to protect employees from TTS is reasonably practicable, in the same way a friend would try to stop you being an idiot. What would we think of a friend who willingly let us put our lives at risk without challenging it? Why should an employers duty be any less, particularly of young persons or those who are not thinking straight? Yes we all have a duty to ourselves and others, that's the point, all includes employers.

I'd love to study this subject more, if anyone can recommend a good tome on behaviour in this context I'd love to hear about it!

Edited by user 15 January 2019 07:48:39(UTC)  | Reason: tryping error

Thank you Fairlieg, I will look them up.

As an example 1 of my mobile engrs was attending site and conducting some elctrical work, the work was in a factory at 1st floor level, he was on a mezzanine level, there were barriers to prevent him falling off and barriers along the walkway to the distribution boards. To his left was the barrier to stop a fall to ground level, to his right was the same style of barrier to prevent him stepping/falling onto the roof of the office below. Roof was light steel struts with a board finish underneat and bags of insulation resting between the struts, to his front was the walkway to the dist boards.

Somehow he dropped his screwdriver onto the roof of the office. Without a second thought he climbed through the barrier and stepped onto the roof. It gave way and he fell 2m and landed on a desk in the office below. The level of the roof was the same level as the walkway.

End result, a trip to A&E and crutches  for a few weeks. Client then decided to pout signs up to say that the roof wasn't strong enough to support the weight of a man.

Engr left our company shortly after and put a claim in, despite the fact he climbed through a safety barrier, stepped onto a roof that was obviously not stong enough. And bizarrely enough he won. Amount undisclosed but he claimed £10K. In his argument he said that because they put the do not stand here signs up after his accident meant that they were at fault. When I spoke to the client H&S rep, they paid because it was cheaper to pay than fight it in court. If we keep doing this then it makes a mockery of real claims.

So in this instance who was to blame and who should take responsibility. In my mind the engr had no leg to stand on with his claim, the company H&S rep said the same but it came down to basic economics and real blame had nothing to do with the final outcome.

Edited by user 15 January 2019 13:00:15(UTC)  | Reason: Not specified

Originally Posted by: A Kurdziel

Originally Posted by: Mark-W

As an example 1 of my mobile engrs was attending site and conducting some elctrical work, the work was in a factory at 1st floor level, he was on a mezzanine level, there were barriers to prevent him falling off and barriers along the walkway to the distribution boards. To his left was the barrier to stop a fall to ground level, to his right was the same style of barrier to prevent him stepping/falling onto the roof of the office below. Roof was light steel struts with a board finish underneat and bags of insulation resting between the struts, to his front was the walkway to the dist boards.

Somehow he dropped his screwdriver onto the roof of the office. Without a second thought he climbed through the barrier and stepped onto the roof. It gave way and he fell 2m and landed on a desk in the office below. The level of the roof was the same level as the walkway.

End result, a trip to A&E and crutches  for a few weeks. Client then decided to pout signs up to say that the roof wasn't strong enough to support the weight of a man.

Engr left our company shortly after and put a claim in, despite the fact he climbed through a safety barrier, stepped onto a roof that was obviously not stong enough. And bizarrely enough he won. Amount undisclosed but he claimed £10K. In his argument he said that because they put the do not stand here signs up after his accident meant that they were at fault. When I spoke to the client H&S rep, they paid because it was cheaper to pay than fight it in court. If we keep doing this then it makes a mockery of real claims.

So in this instance who was to blame and who should take responsibility. In my mind the engr had no leg to stand on with his claim, the company H&S rep said the same but it came down to basic economics and real blame had nothing to do with the final outcome.

This example makes it quite clear; this is not about the law but about the business culture where (usually on the advice of an insurer) the putative defendants agrees to a pay-out for a claim which has no validity in law because they have “been advised” this it is less bother than defending the claim in court. I once read medical report relating to a claim, which clearly said that it was “unlikely” that the claimant’s medical condition was caused by her work. My then employer still decided to pay out anyway rather than go to court.  This does make a mockery of Health and Safety.  

As for why he did it, we'll never know what was on his mind. But the sue and be rich culture caused it, and the courts caused that. Ironically, a jury of his peers would no doubt have said it was his own fault, but the same jury would probably refuse many more legitimate claims than are currently paid out too. 

answers on a post card please....

Originally Posted by: A Kurdziel

You say that you wonder about the intelligence of some of the employees you come across. If they are that stupid should the company be employing them in the first place?  If they are incompetent then perhaps they need to either to transform them into competent employees or get rid of them.

That is the responsibility of the company.

Agreed. I think this is the crux of it all for me. The company should make absolutely certain the employee has the knowledge, skills and aptitude to do the work and a good understanding of the risks so he can proceed without endangering himself. As Mark W said earlier in the second example, "the electrician stepped onto a roof that was obviously not strong enough". Now we know nothing about the electrician or the facts in this case but he obviously thought it was strong enough, whatever his reason for standing on it.  People don't step onto a roof knowing it will collapse, do they. I can't imagine this was a case created by compensation culture, there are far easier ways...

But we all have a duty to ourselves too so if the company had covered all their duties, including a risk assessment that mentioned the fragile roof, then they are covered and should not be held liable as I said earlier. But equally, if the company hadn't, then to me they have failed the employee.

Playing devils advocate for a minute, how many employees are taken on, based on what they put in their CV, and the competence is not assessed until it's too late. He's got a certificate, he'll do. How does the employer know that new recruit has not lied through his teeth to get the job because he is in debt up to his neck, his mortgage is crippling him and his wife is threatening to leave with the kids if he doesn't get a better job? In this hypothetical case, he might be guilty of lying, but he would not have contemplated that he might die because of it. He didn't know what he didn't know, and could have died because of it. The company didn't know what he didn't know either, and that for me is the crux. (in this hypothetical case).

So yes, compensation culture is causing a lot of misuse of the system, but let's not get carried away; a man falling through a roof? it's unlikely he did it on purpose. He thought it was safe. As Fairlieg says, "Why did it make sense for him to do that? (I'll add) And how did the employer end up sending him up there without checking his understanding of the risk?"

Edited by user 21 January 2019 20:14:10(UTC)  | Reason: missed a bit