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biker1  
#1 Posted : 07 January 2019 15:15:00(UTC)
Rank: Super forum user
biker1

If I can float a subject I may have mentioned before, for comment.

As an avid reader of reports on prosecutions, something does occur to me. It is almost inevitable that the employer gets prosecuted over a workplace accident, but is this always fair? What about the employee who did something unwise or even stupid? Do they not have some responsibility in all of this?

In the field of civil law, there are the concepts of contributory negligence and the defence of 'on a frolic of his own'. In criminal law, it seems that there are no such considerations, and an employer can, and does, find themselves at the receiving end of legal liability, often when they have put systems into place that were ignored or overidden by the employee.

All too often, we read of cases where an employee has stuck their hands into moving machinery, sometimes overiding safety devices to do so, when common sense would have told them that it was a bad idea. I read today of a case near where I live when someone suffered injuries using a defective ladder that gave way. It was found that the ladder was in a bad state of repair. Did the injured person not realise this? Ladders don't usually give way, and to do so one would think the defects would be patently obvious. Why did he then use the ladder? If someone asked me to do something using clearly defective equipment, my reply would more than likely be in anglo-saxon.

We are told that health and safety is everyone's responsibility, but then when an accident occurs, it seems to be the sole fault of the employer. We could be quite cynical, and conclude that court fines are revenue for the legal system, and employers would be in a better position to pay these, but it hardly encourages personal responsibility.

What does everyone else think? Have we gone too far in absolving people of personal responsibility, and looking to always blame employers?

DaveBridle  
#2 Posted : 07 January 2019 15:46:13(UTC)
Rank: Forum user
DaveBridle

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.

Mr.Flibble2.0  
#3 Posted : 07 January 2019 16:03:43(UTC)
Rank: Forum user
Mr.Flibble2.0

Guilty until you can prove that you did as much as reasonably practicable and made sure that what you did was suitable and sufficient.

Unfortunately you only find out if what you thought was suitable and sufficient is that same as the courts when something goes wrong. Quite often it's not.

In this day and age people take less and less responsibility for anything that they do, we live in a culture of its always somebody else's fault and someone other than me must be to blame. Look at the people that sue McDonalds for getting fat eating their food or buy a Hot Coffee and then sue the Coffee shop when they burn their mouth on the hot coffee.

This is the reason why you see ‘May contain Nuts’ on a packet of peanuts.

biker1  
#4 Posted : 07 January 2019 16:27:36(UTC)
Rank: Super forum user
biker1

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.

Roundtuit  
#5 Posted : 07 January 2019 19:53:59(UTC)
Rank: Super forum user
Roundtuit

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)

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A Kurdziel  
#6 Posted : 08 January 2019 09:24:36(UTC)
Rank: Super forum user
A Kurdziel

 

You can’t rely on common sense mainly because it does not exist. Things only become obvious after the event. “Yes the ladder was dodgy but it had held up for ages so why would it give way today.”

As mentioned there are human factors to consider.  People are not the entirely rational machines that people assume that they are (assuming is the enemy of Health and Safety). They are driven by all sorts of forces not just a desire for self-preservation. They need to be nudged in the right general direction for their own good. If that sounds bit fascistic, well, if the alternative is anarchy so be it.

The alternative is to put the responsibility on the employee and you can bet your last mince pie that some bosses will start to take advantage of that and we would be back in the bad old days, where workplace place injury and ill health are seen as a price worth paying.

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fairlieg  
#7 Posted : 08 January 2019 10:03:18(UTC)
Rank: Forum user
fairlieg

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

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TerriCox  
#8 Posted : 08 January 2019 10:16:17(UTC)
Rank: New forum user
TerriCox

The legislation was amended in October 2013 with the removal of strict liability to make it easier for employers to defend and required the employees to prove the fault of the employer. The first case has been seen in this going to appeal last year (Janice Cockerill V CXK Limited and Artwise Community Partnership 17 May 2018). The case ultimately did not find in favour of the claimant. (Recommended read as it is quite a complex and long winded finding).

It will seemingly take a long time to stamp out the compensation culture that has taken years to develop to its current status....but, if we all ensure we do our jobs the best we can and try and educate our employers and bring case law to their attention to substantiate our views then hopefully we can creep forward and reduce the claims culture we have.

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biker1  
#9 Posted : 08 January 2019 13:00:33(UTC)
Rank: Super forum user
biker1

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).

A Kurdziel  
#10 Posted : 08 January 2019 13:47:36(UTC)
Rank: Super forum user
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.

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jwk  
#11 Posted : 08 January 2019 14:10:19(UTC)
Rank: Super forum user
jwk

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

biker1  
#12 Posted : 08 January 2019 14:32:56(UTC)
Rank: Super forum user
biker1

I think the point I was making about civil vs criminal law is that there is a mitigating factor of contributory negligence as well as the defence referred to in civil law which isn't replicated in criminal law. Although this wouldn't alter the verdict of guilty or not guilty, it would mitigate the penalty, and could send a message to employees that they are also responsible for their actions. The offence of murder is a different kettle of fish. Discuss.

If an organisation takes all reasonable steps to ensure competence amongst its workforce, but one of them does something stupid, is this the fault of the organisation? Some people do the stupidest things - does this mean they should not be held responsible for them?

jwk  
#13 Posted : 08 January 2019 15:04:00(UTC)
Rank: Super forum user
jwk

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

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fairlieg  
#14 Posted : 08 January 2019 16:15:56(UTC)
Rank: Forum user
fairlieg

Originally Posted by: biker1 Go to Quoted Post

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.

Just to clarify and apologies for any previous confusion.  In the scenario you describe, the employer would still be vicariously liable (by definition liable for the acts or ommissions of another, in the context of a workplace provided it can be shown it occurred during the course of their employement).  Carrying out an authorized task in an unauthorized manner is still in the course of ones work for which an employer would remain vicariously liable for however, there would be an element of contributory negligence as such a defence of "frolic of ones own" cannot be used, Rose Vs Plenty for example.  This is not a "frolic" hence why I said the term is often confused.

A "frolic" is a very well established expression dating back almost 200 years to describe acts which are outside the course of normal employment and according not covered by the employers vicarious liability.  Which as also different from a "detour".  Conway v George Wimpy & Co 1951 2 KB 266 and O'Reilly v National Rail & Tramway Appliances (1966)

Edited by user 09 January 2019 10:10:26(UTC)  | Reason: Not specified

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pl53  
#15 Posted : 09 January 2019 08:11:26(UTC)
Rank: Super forum user
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.

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A Kurdziel  
#16 Posted : 09 January 2019 10:00:45(UTC)
Rank: Super forum user
A Kurdziel

Only those cases where the HSE thinks that they are going to win go to court. For every case that goes to court (where it looks like the employer is bang to rights) there are probably many more where it looks like it is  mainly the employee’s fault and unless it in “the public interest”, to prosecute the employee, the HSE drop the case. This gives the impression that they are only after employers. After all what is the point of fining an employee who has ended up ruining their own lives already.

Roundtuit  
#17 Posted : 09 January 2019 10:42:00(UTC)
Rank: Super forum user
Roundtuit

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.

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nic168  
#18 Posted : 10 January 2019 08:20:09(UTC)
Rank: Forum user
nic168

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.

kmason83  
#19 Posted : 10 January 2019 09:14:01(UTC)
Rank: Forum user
kmason83

Behaviour at work is driven largely by culture and if the culture isn't right then this is straight up management failure, if something went to court and the organisation was whiter than white then sure I could see a case for enforcement of section 7 but there are many safety practioners out there who have seen more than their share of horrific attitude from the very top, just look through the boards. While the big chiefs continue to ignore the culture they should be leading criminal law sits right as it should.
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A Kurdziel on 10/01/2019(UTC)
fairlieg  
#20 Posted : 10 January 2019 09:50:53(UTC)
Rank: Forum user
fairlieg

Originally Posted by: pl53 Go to Quoted Post

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

kmason83  
#21 Posted : 10 January 2019 10:29:33(UTC)
Rank: Forum user
kmason83

There is always that nebosh dip case law too, employer found ton have done all things reasonably practicable R Vs HTM road workers and the mobile tower light. It's easy to get fought up in case law and find it one sided but you gotta nuse your experience to show you why it is the way it.
WatsonD  
#22 Posted : 10 January 2019 10:48:26(UTC)
Rank: Super forum user
WatsonD

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.
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A Kurdziel  
#23 Posted : 10 January 2019 11:28:22(UTC)
Rank: Super forum user
A Kurdziel

Looking at R Vs HTM as the relevant case law, the law in summary states that:

  • That the employer has the principle responsibility for ensuring the Health and Safety etc of employees and others – Health and Safety at Work Act and everything else
  • The employer cannot simple offer a defence that it was the employee’s fault that it all went wrong- Reg 21 of Management of Health and Safety at Work regulations. Ultimately the employer is responsible for everything at work.
  • Section 40 of the Health and Safety at Work Act  makes it the responsibility of the employer to prove that they did everything so far as reasonably practicable, to make it work
  • So the issue is not whether it is the fault of the employee (which is something that IS relevant as far as civil law goes) but whether an employee’s behaviour (that is bad behaviour) is foreseeable. You only need to manage foreseeable risks not simply possible risks
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jwk  
#24 Posted : 10 January 2019 16:53:41(UTC)
Rank: Super forum user
jwk

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

nic168  
#25 Posted : 11 January 2019 13:26:28(UTC)
Rank: Forum user
nic168

An instance of an individual being prosecuted for safety offences ( S 7 I think) was raised yesterday at our branch meeting. R(HSE) V Murray was a case against someoen photographed working on scaffolding at 18m who was not weating harness and had not attatched his lanyard.

The case was bought against him as the company had ample proof of training, Instruction and equipment issue.

I have not looked this up yet but I think it is very recent.

 Watson is probably right as to why there are comparatively few prosecutions of individuals, there have been some for gross negilgence manslaughter ( Honey Rose Optomitrest 2017  and I think there was an anesthetist ).  I dimly recall  a section 7 prosecution in the military about 10 years ago for interfereing with Fire Fighting equipment, if I rememberany useful details I will post them.

But it is a bit of a rarity.

Roundtuit  
#26 Posted : 11 January 2019 15:10:45(UTC)
Rank: Super forum user
Roundtuit

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A Kurdziel  
#27 Posted : 11 January 2019 15:56:12(UTC)
Rank: Super forum user
A Kurdziel

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

peter gotch  
#28 Posted : 12 January 2019 13:20:32(UTC)
Rank: Super forum user
peter gotch

This whole thread started with the premise that "it is almost inevitable" that the employer will be prosecuted in relation to a workplace accident. This is far, far, far away from the truth which is that there are very few prosecutions whatsoever relating to the number of workplace accidents. A greater proportion of more severe injury accidents will result in prosecution but it's not almost inevitable even for those resulting in fatalities.

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Dave5705  
#29 Posted : 15 January 2019 07:46:21(UTC)
Rank: Forum user
Dave5705

Fairlieg is absolutely on the nose,
Originally Posted by: fairlieg Go to Quoted Post

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.

Employees do strange and seemingly stupid things for ALL SORTS of reasons. This was one of the most difficult things for me to understand when I came over to the dark arts (H&S).

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

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fairlieg  
#30 Posted : 15 January 2019 09:03:48(UTC)
Rank: Forum user
fairlieg

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!

I would strongly recomment starting here https://preaccidentpodcast.podbean.com/e/papod-182-essential-controls-and-fatalities-a-beginners-discussion/.  This pod cast has been going since 2015 there is some really good stuff on there.

I would also recommend Dekkers Field Guide to understanding Human Error and Sheins Humble Inquiry

Edited by user 15 January 2019 09:05:54(UTC)  | Reason: Not specified

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Dave5705  
#31 Posted : 15 January 2019 10:41:48(UTC)
Rank: Forum user
Dave5705

Thank you Fairlieg, I will look them up.

Xavier123  
#32 Posted : 15 January 2019 11:48:59(UTC)
Rank: Super forum user
Xavier123

Originally Posted by: biker1 Go to Quoted Post

As an avid reader of reports on prosecutions, something does occur to me. It is almost inevitable that the employer gets prosecuted over a workplace accident, but is this always fair? What about the employee who did something unwise or even stupid? Do they not have some responsibility in all of this?

Just to head back to the OP...

I get that you're leading up to a wider point but if only starting with examination of actual prosecutions then you're into automatic confirmation bias territory. It rather misses all the workplace accidents that didn't result in:

a. a regulatory investigation;

b. no enforcement action; or

c. 'lesser' enforcement action.

In that surveyI'm fairly confident that most workplace accidents would not result in the inevitable prosecution of an employer.

Ignoring item a - when an investigation takes place, the circumstances of relevant employee behaviours do feature within the decision making concerning whether to prosecute or not. They will have relevance for the public interest test and for consideration of likely sentencing outcomes. Prosecutions that proceed have passed certain thresholds for evidence, likelihood of conviction of dutyholder and merit in public interest in moving forward.

I personally have recommended not taking further regulatory action on several occasions where the employer has clearly got appropriate mangement systems in place and/or the incident is the occurence of a normally v.unlikely event or even that the employee is demonstrably at fault. However, such decisions are in the hands of people applying subjective reasoning so whilst decisions should be relatively consistent - that isn't guaranteed.  (particularly across 300 odd Local Authorities and the HSE regions - albeit HSE take the vast majority of prosecutions owing to their policing of the generally higher risk activities).

On the final point, it is not usually likely to be in the public interest to take action under s.7 against an employee that has already suffered injury where their actions are deemed to have been in breach of the law. That may be different where their actions have harmed or risked others.

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A Kurdziel on 15/01/2019(UTC), Dave5705 on 15/01/2019(UTC), jwk on 15/01/2019(UTC), WatsonD on 16/01/2019(UTC)
Mark-W  
#33 Posted : 15 January 2019 12:58:40(UTC)
Rank: Forum user
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.

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

A Kurdziel  
#34 Posted : 15 January 2019 13:18:03(UTC)
Rank: Super forum user
A Kurdziel

Originally Posted by: Mark-W Go to Quoted Post

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.  

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jwk on 15/01/2019(UTC)
Dave5705  
#35 Posted : 15 January 2019 18:22:25(UTC)
Rank: Forum user
Dave5705

Originally Posted by: A Kurdziel Go to Quoted Post
Originally Posted by: Mark-W Go to Quoted Post

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.  

Agreed. (assuming all had been done, RA & CDM (that alone should have stopped this tragedy), safe system of work, properly trained and experienced, not working outside his abilities etc.) How did he claim the company was responsible?

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....

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jwk on 16/01/2019(UTC)
Oxford  
#36 Posted : 21 January 2019 16:10:18(UTC)
Rank: Forum user
Oxford

I agree with a lot of what Dave5705 says - he's covered most of things I would have included in a reply, especially regarding human factors - but I just want to point out two killer (sometimes literally) phrases: "it'll only... and "I'll just"....

I had a discussion many years ago with an HSE Inspector who told me that their approach to any investigation is to establish not only what happened, but also why was it allowed to happen; he was an adherent to the 'all accidents are preventable' viewpoint, and took the view that any accident was a result of management failings.

In addition, going back to the employee's actions, as Lord Justice Oaksey said in 1953: 'people are frequently if not habitually careless about the the risks their work entails'.

I note that the OP mentioned his response might be in good old Anglo-Saxon - maybe the issue is that the person who got injured doesn't speak anglo-saxon

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Dave5705 on 21/01/2019(UTC)
Dave5705  
#37 Posted : 21 January 2019 20:08:24(UTC)
Rank: Forum user
Dave5705

Originally Posted by: A Kurdziel Go to Quoted Post

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

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