Posted By Gerry Colverson Rather than add to the thread on H&S in schools I thought I would start a new thread looking at one aspect of the issue of health and safety of pupils and of others not at work. To start let me introduce myself. I have been in H&S for 25 years plus and have worked in a range of industries and organisations, but am currently in a large local authority. Like most people in the profession, I am very concerned about the way H&S is represented in the press and how this is likely to make our work harder. I realise that a large percentage of the examples of "silly H&S" come not from advice from professionals or from legislation, but comes from people's fear of being sued for damages should things go wrong. However, I would like to raise what is, I feel, a possible contributory factor and that is the way that Section 3 of HASAWA is worded. To quote section 3 (1) “it shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health and safety”. This requirement, not to expose to risks to their health and safety people who may affected. (note: not will, but may) means that there is a different duty of care for non-employees and as we all know more vulnerable people such as pupils and older persons etc. are owed an even higher duty. Please also note that the word “significant” is missing as a qualifier to the word “risks”. If you place that in the context of a school for example there appears to be a different message from the HSE about what risks school children should be exposed to compared to that set out as law in Section 3. Professionally, I and my colleagues agree with the position taken by the HSE when it comes to looking at risk in schools and our caring services and we try and advise accordingly, but I have to admit some concern that should something go seriously wrong, the HSE will not hesitate to consider prosecution under Section 3 and with the way it is worded there seems to be little in the way of a effective defence. I would be interested in the views of others. Regards Gerry Colverson

Posted By toby liberson I would argue that putting the word significant before risk would be redundant as the duty is one of reasonable practicability which includes the concept of evaluating the risk within it.

Posted By Swis the word 'may' is a sensible and better selcetion of word when compared to 'will'. The introduction of word 'significant' would complicate the matter further as different interpertations by different people.

Posted By Adams777 To MartinW "If you remember, the headmaster was successfully prosecuted when a three year old was injured falling down stairs, getting a head injury: in hospital the child contracted MRSA and died" An appeal was upheld in the headmaster's favour - and the private school is still operating. Common sense prevailed in this case. Adam

Posted By martinw I know. That the case was brought in the first place was the point: when it got to the stage where it was quashed it then seemed blindingly obvious that the headmaster should not have been convicted in the first place.

Posted By Robert K Lewis Personally I always felt unease with the Porter case. The death of the child was actually remote from the injury in a strict legal sense. How was the Headmaster to know that the local hospital was so managed as to permit the presence of MRSA. A S3 against the hospital would have been far more obvious in my view. The HSE are however somewhat cautious about such prosecutions though for national government issues. The DoH would clearly not be happy with the DWP pressing them to actually ensure the problem is solved. S3 has always been a vital tool though and was the only regulation of Youth Employment schemes for a long period of time. Certainly however it does ensure that vulnerable persons are protected against situations where they are placed at risk. The use of it by the HSE in the Porter case did bring the system into disrepute for a time and it was the appeal judges that brought things back into line. Bob

Posted By martinw Robert does the Employment of Women, Young Persons, and Children Act 1920 not also allow some protection alongside S3 for those partially under discussion? I remember a relatively recent prosecution which is the only reason I ask. Martin

Posted By martinw Sadly Ray, yes. It was recently reported (December 2008 so may have been rethought since)in Personnel Today that: Postscript: The Health and Safety Executive is currently in the process of appealing against the Court of Appeal's judgment to the House of Lords. I don't know if this is still the case as that was from the end of last year but I hope that the learned words from the court of appeal are not dismissed just because the HSE dislike losing. In some instances losing a case is a victory for law and I thought that this was the situation in this instance. The original start to this thread postulated that it is almost impossible to protect yourself against a section 3 case when you are dealing with difficult to control risk factors and that it is on the defence to prove innocence etc etc. I thought that I would never say this but I hope that the HSE fail in this prosecution if it goes to the Lords.

Posted By Kenneth Patrick Martin, Thank you as well for that piece of information. I could not believe that the HSE would do that, so I checked for myself. I am now convinced that the HSE campaign for sensible risk assessment and against H&S myths is just "polite meaningless words". Ken

Posted By Raymond Rapp Martin I have an update, it appears the HSE were refused leave for a HL Appeal. Hopefully the end of this sorry saga. http://www.dwf.co.uk/new...xpST=NewsDetail&news=210 Kenneth, I agree with you 100 percent! The authorities need to set standards, more action and less rhetoric.

Posted By martinw On the other hand, every time I read this case I find a different bit of info. I was not aware that(according to a report I just read) at the time of the original accident one person was apparently supervising 59 children of differing ages, and due to the geography of the playground some were out of sight of the supervising adult. Gives a different way of looking at the facts of the case without hindsight and perhaps an understanding of reasoning for condsideration of action.

Posted By Peter F. Sorry Gerry that wasn't you're point.

Posted By Peter F. Was it hindsight or was it reasonably foreseeable. I have always argued that once something has happened it is hindsight, but was then told by a solicitor that it was foreseeable, I still argue that it was only foreseeable with hindsight if you get my drift. The point I was making was you don't have to let something happen before you act.

Posted By Peter F. In a local pub they had a staircase to the right of the bar, people stood by it, knowing the manager I spoke with him about putting a gate or barrier across as it was reasonably foreseeable that someone would eventually fall down it, he didn't fit the gate and low and behold someone did fall down it. The claim against him was successful. After someone was hurt he used hindsight and put in a gate. I am not saying we should wrap kids or anyone for that matter in cotton wool and certainly don't go down the nanny state route but sometimes we have to look at individual understanding of dangers.

Posted By Peter F. That why I like a lot of threads on this page, As at times we all have a different point of view which sometimes enables us to open our eyes to something new and perhaps improve what we do. As I said earlier I don't think we should be a nanny state. I have ason who boxes and a daughter who is a gymnast, no harness no nothing

Posted By Gerry Colverson Thank you all for your comments and thoughts. It is often interesting to see where people take some of the threads and this is no different. I was not thinking specifically of the R v Porter case but it does illustrate some of the issues. In my view section 3 is not well drafted for today's health and safety issues. For a local authority or any organisation providing services for the "risk vulnerable", section 3 does pose problems and I agree with Raymond R that it is only the good sense of the regulators that more cases like R v Porter have not happened. However good sense does not make for a good law and I think section 3 needs to be looked at again. On the issue of the missing word "significant" it is only significant because Sect 2 DOES use it and it has been defined by case law. The fact it was not included by the legislators would indicate that the risk was of a different level for sect 3 compared to sect 2. This is of limited impact on the risk aversion culture shown by some in this country but if we as professional H&S advisers had to advise on what the law said and meant I think section 3 goes against the current HSE advice on risk. Thanks again for all the input.

Posted By Phil Rose I also work for an LA and have done so for a good while. I have tried to follow and make sense of the thread; not entirely successfully! I personally don't think that S3 is inherently poorly worded or unsuitable for the 21st century and (at the moment) I don't share the same level of concern. I was interested in the discussion about the word 'significant' though, especially the comment that "..Sect 2 DOES use it..". I have read S2 thoroughly and even used the 'find' function, and I can't find the word 'significant' used anywhere in S2.