Friday, October 13, 2006

Employers not liable for unforseeable events

The HSE has recently lost a case at the court of appeal regarding a case where two employees of Hatton Traffic Management (HTM) died when taking part in road improvements on the A66 near Scotch Corner.

According to this website "HTM were providing traffic management services for contractors (L) who were resurfacing the A66. There were contraflow works, lit at each end by HTM’s mobile telescopic towers which were 9.1 metres tall. 20,000 volt electricity cables passed overhead, dipping to 7.5 metres above the ground. HTM had two employees on site, C and D, who took their day to day instructions from L. C and D were told to move one of the towers. They did not lower the tower under the cables (contrary, said HTM, to their training and to instructions on the tower) and the inevitable happened, with fatal consequences for both employees."

HTM were charged with failing to discharge their duty under s.2(1) of the Health and Safety at Work Act 1974, namely failing to ensure, so far as was reasonably practicable, the health, safety and welfare at work of all its employees. At a preparatory hearing, the judge ruled in favour of HTM on both points. The prosecution’s appeal was unsuccessful.

The HSE took it to appeal and lost. According to this website The implication is that this ruling demonstrates that "Employers cannot be found negligent on health and safety grounds when employees are acting outside their remit."

According to another website HTM's lawyer said after the case "If this argument had been upheld by the COA, Groch believes, it would have effectively removed of any real defence available to employers in the area of risk management. Insurance premiums would have also beeen affected as insurance companies would take action to protect themselves against substantial claims. Another disturbing implication would be that some employers may question the need to invest heavily in health and safety provisions if, in reality, they have no effective defence against criminal prosecution."

But this is unlikely to be the end of the case. HSE will probably take it to the House of Lords, and it does seem there is plenty to debate. I personally find it hard to say that with high voltage cable nearby that it was not foreseeable that workers may forget to lower the lights before moving them. Also, we all know people take shortcuts and we should consider this in our risk assessments.

A spokesman from Norwich Union made the following comments at this website. "In this case it seems that HTM argued they had taken all reasonably practicable steps to ensure the safety of the employees and had provided training and instruction, as required by law. But, they argued the sequence of events that occurred was not foreseeable.

"Some might consider this somewhat disingenuous, despite the ruling. If there is a shortcut - that will save a bit of time and perhaps enable an early tea break, a chance to have a few minutes in the cab out of the rain - then is it not the case that employees will find it?"

Andy Brazier

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