Employers have a statutory duty to carry out a risk assessment under The Management of Health and Safety at Work Regulations 1999, section 3. Incidents arising out of the absence or failings of a risk assessment are no longer actionable as a breach of statutory duty however, because Section 69 of the Enterprise and Regulatory Reform Act 2013 amended section 47 of the Health and Safety at Work Act 1947. So for accidents that occur on or after 1st October 2013, there is no civil liability for breach of health and safety regulations.

However, in Kennedy v Cordia (Services) LLP (Scotland), [2016], UK Supreme Court, 10 February 2016, the court said: “The requirement to carry out such an assessment, whether statutory or not, forms the context in which the employer has to take precautions in the exercise of reasonable care for the safety of its employees. That is because the whole point of a risk assessment is to identify whether the particular operation gives rise to any risk to safety and, if so, what is the extent of that risk, and what can and should be done to minimise or eradicate the risk. The duty to carry out such an assessment is therefore, as Lord Walker of Gestingthorpe said in Fytche v Wincanton Logistics plc [2004] UKHL 31; [2004] ICR 975, para 49, logically anterior to determining what precautions a reasonable employer would have taken in order to fulfil his common law duty of care.” Also, “a negligent omission can result from a failure to seek out knowledge of risks which are not in themselves obvious.”

I think this fact has not received the attention it deserves, ...https://www.linkedin.com/pulse/supreme-court-has-reenforced-employers-liability-risk-andrew-mcneil?trk=prof-post

Edited by user 04 January 2017 16:36:54(UTC)  | Reason: Not specified

Hi Andrew

I'm with Walker on this although I am interested in your pitch on Kennedy v Cordia which as a Supreme court case holds far more interesing aspects elsewhere than the issue you appear to have raised-which is what?   Risk assessments [not the current bureaucratic regime] have been required one way or another at least since 'reasonably practicable' was first defined way back Edwards v NCB [1949] ie Risk v cost, sacrifice, etc It was also good to see a colleague, CMOISH, being so nicely supported by the Supreme Court judges for his excellent work as an expert witness

Regards

Mike

Hi Andrew

I'm not sure exactly what you are trying to say about employer's liability for risk assessments being reinforced by Kennedy? 

I believe that little has changed from the legal position before that case.

THe RA's in Kennedy for instance were extremely poor and the deficiencies were pointed up by the expert's report with the judges in the SC and at first instance, Outer House, finding for Miss Kennedy because the company was in breach of the MHSW regs [r3] and the PPE regs [r4.1]-sufficient for her to win her case for breach of statutory duty [BoSD]and indeed she would appear to have won in common law too for negligence-a much more difficult action to take than BoSD, which as you write has now gone after 150+ years under E&RR-a terrrible mistake from my perspective but in line with the government's pro business agenda and thirst for backwoods reforms.

Some other really important aspects include the poor understanding by some judges of detailed OHS issues especially the court of Session in Kennedy, the Inner division, Lord Brodie in particular whose findings were all reversed by the SC. Completely out of touch-a parrallel with doctors who have no/or limited training in Occ health

So, the answer to your original question is that an employee can still sue for RA's which are not suitable or sufficient if they indicate that the company/employer has been negligent. RA's must always be performed before proper controls are selected and put in place-this is not new either even if referred to in the cases Fytche and Allison-the later more a problem of the lack of understanding of OHS tecnicalities.

Regards as a good discussion is always interesting

Mike

PS Hope the conference helps to put this to rest but I'm not holding my breath    

Originally Posted by: walker

IMHO

The whole issue of risk assessments is a red herring

Surely all "the law" has ever asked for is suitable and sufficent controls are in place to protect people from harm.

And RA is jut a way of identifing these.

Indeed, but how else can a solicitor win a case for negligence if they cannot prove the RA was not all encompassing by identifying every possible adverse scenario?