This is just Tomlinson vs Congleton MBC, and it's not the first time it's been used in a case like this.

Pace what most journalists would have us believe, the courts in the UK usually use good judgment and sound principles, not always of course, but usually. Rather than an outbreak of 'common sense' I'd rather see a rash of principled & informed journalism, 'Right, as if that's ever going to happen',

John

Phil

Have you seen this....

http://publications.envi...pdf/SCHO0809BQVS-e-e.pdf

Includes a photo of my dog!

Have a good Xmas.

Regards, Peter

Without doubt another tragic case. Indeed, sometimes I feel that personal responsibility is not given enough weight in these circumstances and particularly parental control. I also despair at the ubiquitos quoting of 'risk assessment' as if this process alone would have prevented the incident, which I doubt. I often think of the words of Lady Hale "some things are nobody's fault".

It is always sad when someone is seriously injured or killed, and for many it is entirely understandable for a number of reasons why they should seem to apportion blame elsewhere; sometimes for no other reason than to ‘salve’ their own conscience or just to try and understand 'why?'.

I can't help but agree with LJ Hale, contrary to what many feel, I have always believed that there are such things as accidents where there really is nobody else at fault for whatever the occurrence was, except for the person themselves, and I think this is well illustrated in Congleton. The case was tragic but was it anybody else’s fault other than his own?

And agree with Ray, that risk assessment is by no means the panacea of 'H&S'. I have found Congleton to be both 'enlightening' and 'refreshing' and I feel vindicated in the approach that I have come to when considering our countryside sites; that we shouldn't routinely erect warning notices where the hazard/risk is obvious, especially where the warning is unlikely to have any great effect on managing the risk and/or where it would significantly detract from the amenity value of the site.

But I also wonder as does Martin, as to what the mechanism is to review the competency of judges, especially where their judgements have been appealed and subsequently overturned.

But I also wonder as does Marytin, as to what the mechanism is to review the competenecy of judges, especially where their judgements have been appealed and subsequently overturned.

I tend to agree with Martin and Phil, in that courts often show a lack of understanding for h&s issues. The judiciary would no doubt rebut by arguing that following a court at first instance is the appeals process where poor decisions are often overturned. However, this is missing the point I believe. I could mention many other instances, Porter having been quoted already, but R v British Science Museum Trustees and especially Hatton v Sutherland [2002] 2 All ER 1 (CA), a conjoined Court of Appeal hearing of four individual cases for occupational stress where three cases were found in favour at first instance.

The Hatton CA case overturned three out of four original judgments. More interestingly, the Court of Appeal found that County Court judges were not familiar with this area of the law and as such they were experiencing great difficulties in applying the correct legal tests. Some of the judges were confused about the existence of a duty of care, some were confused about the standard of care, almost all were confused about the tests for causation and many of them were having great difficulty in assessing damages correctly. Some even managed to get every aspect of the legal analysis wrong!

I have argued for some time that the judiciary and especially juges have a poor understanding of the various concepts in h&s and specifically the concept of risk. Of course, most cases are decided by a jury and therefore it is they who determine who is guilty or not. if the judiciary cannot get it right, then what chance has the poor layman?

Phil, there are some areas in h&s that are subjective and therefore there will be an element of disagreement, but the same can also be said of many things in life. Those in the judiciary are professionals and should have a reasonably good knowledge of the concepts they are dealing with, otherwise how on earth are judges going to be able to rationalise a case and explain to the jury the pertinent facts. Hopefully one day we will get a juicy corporate manslaughter case with a MNE on trial and see how it pans out, but I have a niggling doubt that it will ever happen and certainly not in the near future. Until then we will have to put up with judicial mediocrity. They often say our legal system is the best in the world...does not say much for the rest in that case.