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23 May 2006
Landmark Appeal Court ruling favours employers
The Court of Appeal has quashed a move to effectively strip employers of any real defence against health and safety prosecutions.
The court has ruled against the Health and Safety Executive (HSE) in its attempt to argue that employers should still be required to take reasonable steps against unforeseeable risks and that negligent actions by employees are irrelevant to the guilt of an employer.
The landmark ruling has immense implications for all employers and health and safety professionals, as well as the entire risk management sector.
It relates to a case in which two workers employed by HTM Limited died in an accident on the A66 near Scotch Corner after some equipment they were using came into contact with an overhead electricity cable.
The Health and Safety Executive is prosecuting HTM Limited, represented by health and safety specialists DWF Solicitors, and appealed on two points of law, relating to whether the ‘foreseeability’ of events and the actions of employees can be used as defences.
Steffan Groch, partner and head of health, safety and environment at DWF, commented: “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.”
Groch went on: “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.”
Groch believes that if this argument had been upheld by the COA, the area of risk management would have been transformed overnight, with the effective removal of any real defence available to employers.
Insurance premiums would also be affected as a result of insurance companies taking action to protect themselves against substantial claims.
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.”
His advice to businesses is to approach healthy and safety issues in the 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,” said Groch.
Notes to editors:
DWF is one of the fastest growing law firms in the UK, with over 350 legal advisers (including 66 partners) and 600 staff based in Manchester and Liverpool. DWF is the largest law firm in the North West based on the number of NW based fee earners as reported in the latest Legal 500 directory.
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We have developed extensive sector-specific expertise in a number of areas and have created specialist groups to enable our clients to benefit from this expertise.
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