Posted By Is Kismet I can see the fundamental difference of opinion between the HSE and the HSC. And I can see the agreement between the court verdicts and the HSC. Which in turn means there is a contradiction between the views of the HSE and HSC. What was the question!!!!

Posted By ddraigice What you didnt do was explain what the case was. As I recall (and please correct me if i've got this wrong) the case revolved around a fatal accident where employees wheeled a lighting rig into an overhead cable. When you get down to it, HSE see the question of forseeability and employees duties with regard to accident history and human factors. Of course, others (including the judge) have different ideas. We know that when people are busy working they tend to overlook things - thats one of the reasons we need to risk assess things and do whats reasonably practicable to remove or reduce the risk. You can be damned sure these guys didnt do this intentionally for a laugh. We also know that accident history shows us that when tall things come into contact with OH cables people are likely to die. Some would think that it was reasonably forseeable that the lighting rig with the potential to touch the cables should have either been foreseen and risk assessed or at a minimum the guys who were killed should have been told about the risk and not left to get on with it themselves. Some will agree with this and some won't. The human factors thing leads us down another avenue - that of "pilot error". We could blame the victims in many accidents but at the end of the say they are just trying to do a days job for a days pay. The sensible risk management issue is not about whether risks are foreseeable or not - that is more to do with the way H&S is portrayed in the media with conkers and hard hats for circus performers and so is a completely different issue.

Posted By ddraigice HSE is dutybound to take the case as there seems to be a breach of reg 3. However, Its the courts decision at the end of the day and a fine line between operators duties and the company's. IF HSE did not take the case it would have faced criticism but lets not mix it up with "sensible". If you talked to the victims families or employees in similar circumstances that word has a different meaning. This debate is a non-starter as the sensible ra that HSC is pushing is to make people aware that low risk issues where kids games or field trips are not newsworty items and just increases peoples low opinions of H&S professionals.

Posted By Descarte Call me a safety Nazi but what ever happened to enforcement, disipline and management of employees by supervisors and like peers. "employees ignored their safety training and acted contrary to warning signs" Surely the employer would still be responsile Or am i reading it wrong

Posted By ddraigice The point is, of course you havent the time to look over everyones shoulder which is why forseeable risks need to be controlled. People take short cuts - fact of life. Is it foreseeable that a tall thing could hit a OH cable? The courts thought not - despite guidance and accident history to the contrary. Lets take another example. Someone is told not to go near an excavator when it is working and yet it's reasonably practicable to put in pedestrian segregation. The gut gets clobbered and dies. Is it his fault? Did he go there on a jolly of his own? Maybe, maybe not but it's forseeable that he could get there and rp to put in a control measure.

Posted By Ken Taylor Who was it who said that, if you ask two lawyers, you'll get at least three opinions? I've heard all sorts of surprising decisions by courts, HSE inspectors and even safety practitioners over the years. At the end of the day it seems to come down to the opinion of the individual(s) involved at the time whether or not in line with suspected precedent or current thinking. Perhaps it's the uncertainty that helps to keep us 'on our toes' and keen to keep up-to-date'.

Posted By Robert K Lewis Raymond The issue of reg 21 of the management regs is only now receiving a real test. I have some mixed feelings over this as there are arguments on both sides for existence of the regulation. Employers sometimes tend to think that the mere provision of some form of training is an answer to the problem defending oneself in court if necessary. It is not however in my view as the question that the HSE can readily follow up is to ask "how you can demonstrate the training was effective and adequately monitored in its implementation "at the coal face" so to speak"? It is actually a question of being able to demonstrate that one has in place an adequate competence management system, not merely a set of training records. The same reasoning also applies when one is trying to argue having done all that was reasonably practicable as a HASAWA defence strategy. The evidence of training is but one leg of a system of management to ensure that the right people are doing the job in accordance with the requirements set out by the employer and where those employees make competent on the spot decisions concerning the precise actions they are to take at any one point in time. The particular issues before the court were whether it was open to a defendant to use his risk assessment and training information in a defence or whether reg 21 had strict application. The courts favoured the former approach as there appeared a contradiction in the legislative requirements. Bill Callaghan rightly discusses the rash of over-zealous assessment which has placed burdens on organisations which need not be necessary. He was concerned that such actions actually became self defeating ultimately with H&S becoming an issue meriting the same near contempt it faced many decades ago when it was simply a necessary evil and not a tool for bringing about social benefits. The conflict does not exist as you frame the question because the HSC and HSE are approaching two separate issues - over assessment on one hand and how a particular regulation applies on the other. Bob

Posted By Robert K Lewis Ray I think you are talking across yourself somewhere - reg 21 is concerning provisions as to liability. No employer will wish 21 to be effective in a case. The HSE however take a great deal of potential power from it. My real concern, which is evident in the facts of the case as far as I know them, is the reliance purely on the provision of a recorded training course being seen as having done all that was reasonably practicable. Thus it is believed that the company have provided competent workers who were potentially behaving in an incompetent manner. I, however, recognise that there is a clear distinction in Negligent actions and Incompetent actions. If a person is competent and performs an incorrect action, no matter how contrary to training given, this does not per se mean that the person is now incompetent but could merely be negligent on that day at that time. As I indicated in my previous post competence management is not about having a good training plan and set of records. A genuine competence management system should have picked up whether the actions of the day represented the behaviour of the people involved. If it had then action should have been taken and the company would not have been exposed to prosecution. True competence management is an active control system not a post event recording of information. Bob