Appeal Court Rules Against Health and Safety Executive
May 24 2006 - The Court of Appeal has made a landmark ruling against
the Health and Safety Executive (HSE) which attempted to argue
that employers should still be required to take reasonable steps against unforeseeable
risks and that negligent actions by employees are irrelevant to an employer's guilt.
The ruling relates to a case in which the HSE is prosecuting HTM Limited.
Two HTM Limited employees died in an accident on
the A66 near Scotch Corner when equipment they were using came into contact with an
overhead electricity cable. HTM Limited, represented by health and
safety specialists DWF Solicitors, appealed on two points of law, relating to whether
the 'foreseeability' of events and the actions of employees can be used as defences.
The ruling has significant implications for all employers, health and safety
professionals, and the whole risk management sector.
Steffan Groch, partner and head of health, safety and environment at DWF,
said: "I believe the COA has come to the right conclusion in its analysis of the law.
To view matters otherwise would be to drive a cart and horse through long accepted good
practice in health, safety and risk management.
"However it is now clear that the HSE will be looking to take this to the
House of Lords. The HSE was arguing that it is irrelevant that my client could not have
foreseen what was going to happen; and that the accident was caused by the employees
acting outside their remit, ignoring their training and acting contrary to warning signs
on the work equipment."
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.
Steffan Groch added: "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."
Steffan Groch advises businesses to approach health and safety issues
in the same way that HSE inspectors do.
"Employers should carry out risk assessments, and try to look at how
accidents could take place. When every foreseeable eventuality has been considered, you
should have some evidence that you have thought about the issues, so that if it comes to
a prosecution you can use this in your favour," he said.