I have noticed that a number of posters on this site keep asking for case law, which is then used as evidence ( a driver) for adopting a particular policy at their place of work.
I have to ask the question why?
The point of the H&S professional is to predict what might happen if things go wrong. They should use their knowledge and experience to produce policies that reduce the risk to their employees. Whether there is case law is not really relevant and it is based on a mistaken assumption that if there is no case law then there is no legal reason for following a particular course of action. In fact the opposite is true, if you fail in the general duty of care identified in both common law and statute you can end up providing the case law!
So why the obsession with case law?

Case law provides a historical interest, as m states, especially for those studying. Case law does not have quite the same prominence as it once did because there are far more statute laws and judges tend not to be held to previous case law, but make decisions based on the facts of the case. That said, case law still can provide some guidance where there may not be a statute law covering the subject, where there is some element of doubt and where a potential civil law claim may be avoided.

Case law should not be dismissed as being irrelevant, it is a part of the bigger picture. Knowledge of the law and its machinations can be a great persuader in times of need.

I agree that case law is of historical interest and very important for people who want to understand how H&S works, in general terms, but what I am surprised by is the occasions when posters ask for quite specific case law on very specific issues. I get the impression that they are trying to produce a policy and using specific case law as a driver for that specific policy, for example there was a posting about mobile phones recently and the poster wanted evidence of a case law that illustrated that situation. One gets the impression that the H&S professionals and managers are purely driven by a desire to comply only with the law and nothing else. So where does case law and law generally stand as a driver in H&S policies compared to the other parts of the MEL mnemonic, namely Moral and Economic?
Remember case law is not by its nature complete, it does not and cannot include every eventuality. Surely H&S professionals should be looking at more general principles and selling these to their management rather than just saying “Well if we do this then this case law will apply”?

AK, perhaps some H&S professionals have the moral & economic arguments well rehearsed but need a bit of help with part of the legal side.
Sometimes a manager or employee needs convincing that someone real has fallen foul of the law and what the consequences were before they accept change.

Hi Buzz,

Do you think the 'hearts & minds' approach is generally seen to work at a large corporate level?

A recent safety bonus to board members story comes to mind straight away!

Buzz,

A year following the drastic disaster in the gulf of Mexico where 11 people died, the board decided to have a bonus as it was deemed it had a good safety year for their worldwide operations.... After the press releases and likely some embarrassment ensued to donate it to a fund.

I do agree though 'hearts & mind' approach has it's merits but at local levels of management and worker involvement. I was involved in this kind of local safety behavioral incentive with local labour abroad and was very successful too.

I'm sometimes sceptical regarding starting at the top due to some large corporate systems, sometimes it is a long distance to travel to the bottom (or to reach upwards where case law and the ramifications are sometimes felt more in the financial sense)

Part of the role of a CHSP is to provide guidance to management on the potential legal situation that may be faced by the company. To do this one must understand how courts of first impression provide interpretation of the law in particular situations. The A66 case showed how even in criminal cases the prosecution may be taken to a court of first impression to gain an accurate interpretation of a point of law. In this case the use of Risk assesment v the requirements of part 21 MHSWR 1999. HSE were not happy at the outcome.

Case Law is the bedrock on which safety professionals develop advice on legal issues

I think this has gone off track- or perhaps I didn’t explain myself. I am not saying case law is not important in the legal context ‘Stare decisis’ and all of that. Nor is the fact that H&S professionals need to be able to understand where our law comes from BUT rather I am surprised by the number times that someone on the site says or seems to say, “I am proposing such and such a policy and although this is based on my judgement as H&S professional, my management will not adopt it unless I can provide case law showing that if we do not adopt this policy we will end up losing in court”.
I do use case law to illustrate points etc but I don’t expect to be able to find specific cases to support the policies that I am putting forward.
I hope instead that my professions opinion as to the best way to manage a risk is enough.
Perhaps I am naive or something?