It probably isn't 'fair' but it is the Law! it is also a way of preventing companies getting in the cheapest contractor who may not care for the safety of employees against a more expensive, professional contractor who is more likely to do it properly. If the company knows that their selection of contractor could ultimately affect them directly, they will apply greater care in that selection and will look at other factors apart from simply 'cost'. There are so many other reasons why it is this way and whilst it may not be 'fair' in it's simplest form it is more than 'fair' in others

The simple answer is that some prosecutions are fair and some are not. All too often those that should share the liability get away with it, particularly with regards to CDM Regs, where there should be joint responsibility for certain issues. I often wonder what criteria the authorities are using when I read about certain incidents and cases. It appears to be something of a lottery at times. Large organisations are often insulated by the 'corporate veil' and even more so where individual liability should apply to senior and middle ranking managers.

The thing that strikes me on this particular prosecution is that a company hires a contractor and discusses what needs to be done. Surely the hiring of a contractor to carry out work on your behalf indicates that you do not have the experience or knowledge to carry out the task yourself. In that respect, how would you be expected to carry out a daily inspection and know what you are looking for? Do you need to hire a contractor to check on the contractor? And who checks the contractor that is checking the contractor? I just find it interesting - there may be other factors which aren't mentioned in the link which would justify the prosecution of the company but if I was purely going off the information given I still find it hard to justify a prosecution against the company.

An interesting question about responsibility, which I am not convinced that the law has cracked in this country. I remember carrying out some work in the pre-EC Czech Republic, and if a contractor did something wrong, they got fined, there was no comeback on the commissioning company. Might be a little bit too far to the other extreme, but makes you think. On the vein of responsibility, is it always fair for companies to be prosecuted when an employee has clearly done something inadvisable or just plain silly? I read cases where people have stuck their hands into machinery and got bits of them cut off, and one question that always comes to mind is 'why did you put your hand in there in the first place?' If there are issues of guarding being removed with the company's knowledge or connivance, fair enough, or an established practice that should have been picked up and stopped, then a case against the company can be argued, but whatever happended to personal responsibility for actions in all of this? There is sometimes an argument for the civil law defence of 'on a frolic of his own', methinks.

And that may well happen:

It just smacks to me of apportioning blame in the wrong direction. Much the same as an intruder to your premises having rights to claim for injury during their trespassing. I'm of the belief that if they weren't there then they wouldn't be injured. They aren't meant to be there so why do they have a claim? Similarly in this instance a company have appointed a 'competent' contractor to carry out the work but have then failed to do what they said they would when they signed the contract. If they had used the boards as they said they would thenthe accident wouldn't have happened. Why should the company need to hold their hand and supervise, they may as well just do it themselves. Apologies I'm just in one of those moods today where everything about this country's judicial and legal stance seems morally wrong.

Has this ever actually hapened or is it a bar room myth? I'm aware "setting traps" is illegal but so it should be.

This an HSE press release!

Actually, you can delegate responsibility, but you can't delegate accountability. The issue is really about how much a client should supervise a contractor. This of course will depend on a number of factors, but in principle the contractor should in my opinion be held accountable first and the client second. It appears in this particular case to be the other way round for some unknown reason.

"Do you need to hire a contractor to check on the contractor?" We had a visit from the HSE to an off shore windfarm- He discovered the diving company didn't have emergency plans for evacuating a diver with a head/neck injury. Although not prosecuted we received a letter of displeasure and now have a diving contractor overseeing a diving contractor.

It does sometime look like a lottery doesn’t it? Contractors are used for many purposes, not just because a company doesn’t have the knowledge or experience to do it itself. I have always considered that the employer still retains a share of the responsibility, and if necessary they must take advice to ensure that competent contractors are appointed. I have also considered that supervision of a contractor is both good practice to ensure that standards (H&S, quality, customer service etc etc etc) are maintained and meet expectations. As 'unsavoury' as some may feel it to be, trespassers claiming for injury isn’t a bar room myth! It is a well established principle. Try Herrington and OLA. As Ray has said, of course you can delegate responsibility, indeed the delegation of responsibility for health and safety or other management functions lies at the very heart of any organisation, and the vast majority wouldn’t be able to function without doing so. All said, it does seem curious that the contractor seems to have ‘got away with it’. What is even more frustrating, is that we have all seen this particular kind of accident reported time and time and time again. Do we ever learn? A brief look at the website suggests that this isn't a 'tuppeny ha'penny company (unless Scotsam knows otherwise) and in that respect the company should IMVHO have exercised better control.

As a lot of people have said, there may be more than is obvious to the case. But of course any company/organisation always has the option of pleasing "not guilty" if they feel hard done by and that they have a defence worth fighting. PR's aren't done a whim, they need to be evidentially robust and ultimately convince a court.

With regards to trespassers and the OLA, the OLA it is a statute civil law, which has different objectives to criminal law and therefore making a like for like comparison is problematical. Also, civil law has a lower burden of proof to criminal law and dare I comment - not really applicable to the original post. 'PR's aren't done a whim, they need to be evidentially robust and ultimately convince a court.' If only it was a simple a that. There have been many cases where the above criterion has not been evidenced in court and consequently a not guilty verdict returned. Does this mean the prosecution's case was not robust?

I think there is some myth making going here. From conversations with friendly HSE inspectors I have gleaned the following: 1. The HSE do not prosecute at the drop of a hat. They are only supposed to take on cases that they are fairly certain of winning. There has to be clear evidence of substantial wrong doing. 2. If you look at the court reports in SHP etc, you rarely see any defendant pleading not guilty; almost all put up their hands and say “fair Cop”! 3. The HSE’s own policy- find it on their website- makes it clear that prosecutions should only be if there is a H&S breach that leads either to an injury or a significant risks of an injury to somebody. It is not HSE policy to prosecute for a technical breach, so if the client is prosecuted they must have some something wrong (or failed to something). Referring to R v Octel, the client was really rubbish. The contactors turned up with nothing and Octel staff gave them a bucket (which they found in a skip) and bottle of acetone and told them to get on with it. So yes they were in control and responsible to the subsequent accident.

Clearly there is a case against the contractor, but there may be difficulty somewhere. The article does say... 'The case against the contractor remains under consideration by the Health and Safety Division of Crown Office and Procurator Fiscal Service'

The company involved in the in the original post has a turnover of approx £127m, a large organisation, there is no info on the contractor involved, probably so small as to be insignificant. It sounds as though such a large oganisation should not have using such a small "cleaning company" without adequate resources for this job. Someone as been killed at work. Someone should be held to account. Fining a small cleaning contractor a few thousand pounds cannot be right. Can it? Read this for more info. http://news.stv.tv/scotl...over-workers-fatal-fall/ For those that cannot be bothered, the above reads: A sheriff blasted Tullis Russell’s company’s safety arrangements as “amateurish” following Thomas Sturrock’s fatal fall. However, the fine imposed on the paper makers - whose turnover was more than £127m in 2010 - was slashed because the sheriff was "concerned" a larger penalty could "bring the company to its knees". Mr Sturrock had been part of a team clearing tons of vegetation and debris from the roof of Tullis Russell’s factory at Southfield Industrial Estate, Glenrothes. He plunged around 50 feet through the fragile asbestos cement roof as he carried two full black bags filled with rubbish. Fiscal depute Issma Sultan told Kirkcaldy Sheriff Court that a sub contractor had been brought in to clear 24.5 tons of vegetation from the fragile roof. The contractors brought in - who Mr Sturrock worked for - had given the cheapest quote, but the court heard an employee of Tullis Russell had failed to follow proper procedures when hiring them. Pre-contract safety paperwork had not been filled in, while workers were not wearing harnesses or ropes or using crawl boards to traverse the fragile roof. Bags filled with heavy debris were also left in piles on the roof. Ms Sultan told the court that at midday on September 29, 2008, Mr Sturrock had been walking with two filled bags of rubbish towards his brother-in-law, David Keillor, who was standing on the edge of the roof throwing bags into a skip below. There was a sudden cracking sound, and Mr Sturrock disappeared from view. Steve

oops..DOH, should have checked, its the same news from Clairel.... sooorrryy... It's Friday!!

I do empathise with the initial thread but there is a Precedent Mersey Docks and Harbour Board v Coggins and Griffith (Liverpool) Ltd [1946] 2 All ER 345 — extent to which employer may be held vicariously liable for negligence of contractor

Sorry, Grant, should have read 'Im not sure I agree'............(friday fingers have went to sleep).