Posted By John Johnston Hey David, As health and safety practitioners, I believe we all want the same things (I hope): to make this world a safer place and to make a difference. I personally believe that what ever I "sign", I have given my all in making sure I have thought of all avenues of potential harm to others. If there is a disasterous outcome to my acts, I would hope it is purely because of a sequence of events I could never have planned for. After all, as Geoff Bilton of Zurich Municipal at a recent IOSH meeting quoted, "Outcome is often dependant on chance". It would be terrible if a young child were to suffer or even be killed if you decide to go ahead with a pond, but what if you were to build a swing park and a very different series of events came to light to cause a fatality of a child? In the same breath I think of when I play with my own 3 year old in the swing park, just what if.... There will always be someone who wants to "blame" a single person when a fatality occurs, and increasingly so in this day and age as we are a nation of "civil liability junkies". I have recently taken a keen interest in a particular case: John Tomlinson v Congleton Borough Council [2003], found here..... http://www.golds.co.uk/a..._trespassers_feb2004.htm This case emphasises the fact that some things are just meant to be, tragic as it is. I'm not sure if I am helping here, nor can I say what to do, but we just can't plan for every single disaster that WILL happen at some stage. All we can do is try our very best to make sure we think of every eventuality we can. That's my bit anyway, I hope it has helped in some sort of way and good luck with whatever you decide. Very best regards John

Posted By Allan St.John Holt I agree completely with John. Making an assessment of 'low risk' does not imply 'no risk', just that it's that much less likely to occur. We all make decisions of this kind every day, after all. Surely the important thing is not to carry out tasks for which one isn't competent? Not suggesting that applies to you, of course! The pond risk assessment isn't too difficult for a competent person. The blame element would no doubt arise if either a) you rated it as a lower risk than it clearly was - i.e. even joe public would have thought it was dangerous - or b) somebody decided to ignore the precautions you feel necessary on the grounds (say) of cost or expediency. I haven't seen any cases of inadequate risk assessment being pursued against the individual who carried it out - but others may know of one, of course. Hope this helps, Allan

Posted By Philosophical Alec, God forbid you should ever make a mistake! I would suggest you are viewing the case in question very simplistically and interestingly one wonders how familiar you are with it. Nobody died, but an individual was badly burned, but you are correct in that the safety adviser was fined and not jailed. In light of David's concerns, one must also wonder what effect this prosecution will have on the profession - will we resort back to the rule book approach so that we make sure we are covered? I would suggest that is hardly a professional approach to improving health and safety! Unfortunately, those charged with enforcing the law only see things in terms of black and white, the reality is actually very grey. I think as safety practitioners we need to be very careful before we condemn the actions of fellow professionals - can we all be sure that we have covered all of the bases every time we review something from a safety perspective? After all, we are all human with human failings! With regard to the initial question, I don't see any problems with what you are suggesting David - the key to this is negligence, if you carry out the risk assessment negligently you will be culpable. Regards, Andy

Posted By Peter Lee Philosophical, just to set the record straight regarding the Fatty Arbuckles case, a 17 year old employee was fatally electrocuted by a plate warmer whilst he was deck scrubbing a wet floor. http://www.ehn-online.co.../EpVFplkpkpnYboWbzF.html

Posted By Peter Lee David, I was at the Yorkshire IOSH Branch meeting recently, where the EHO Manager who took the prosecution on behalf of Lincoln council gave an overview of the Fatty Arbucles case. As for him being employed as a Food officer he was responsible for both Food / Health and Safety for the company but decided to concentrate primarily on food issues. Just to further set the record straight Mr Helmrich was not sent to prison.

Posted By Geoff Burt Extract from recent Newsletter There is an increasing feeling in the UK that someone is to blame for most accidents, and should be sued subsequent to any mishap. It’s known generally as the ‘blame and claim’ culture. So would an action against the landowner succeed? This was the question that arose recently in the case of Tomlinson v Congleton Borough Council. At a local authority-owned country park, an 18-year-old male dived too steeply into a lake, breaking his neck and rendering him a tetraplegic. The Court of Appeal judged the man to be a trespasser, having ignored clear ‘No Swimming’ signs. Nevertheless, it held that he was owed a duty of care by those in control of the land under the Occupier’s Liability Act 1984 in respect of any risk arising from the state of the premises, things done or omitted to be done on them. The court went on to find that not enough had been done to obviate that risk, and the duty had been breached. As a result, the Court of Appeal decided in favour of Mr Tomlinson, i.e. the authority was liable for his injuries. The authority appealed to the House of Lords, which overturned the decision and unanimously decided that there is a balance between care for one’s neighbours and the risks inherent in our world. Having that balance in mind, the authority was not liable for Mr Tomlinson’s injuries, however sympathetic the Court felt towards him. The House of Lords said clearly that: “It is not and should never be the policy of the law to require the protection of the foolhardy” It appears that good sense has prevailed, in a world where all too often it seems to be lacking and the ‘nanny state’ has accordingly been dealt a body blow by this judgement. Furthermore, an occupier who takes reasonable steps to prevent an injury to adults from a danger arising from the state of the premises, and puts up proper warning of it, will usually be safe from a claim for damages from an irresponsible trespasser.

Posted By Raymond Rapp Geoff, As I read this posting I immediately thought of this recent precedent. Good article if I say so myself. Ray