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Employers are relieved after Lords appeal by Health & Safety Executive is quashed

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DWF138/06
23 August 2006

Employers are relieved after Lords appeal is quashed

The Health & Safety Executive (HSE) has been refused leave to appeal to the House of Lords in its apparent bid to strip employers of any real defence against health and safety prosecutions.

The ruling by Judicial Appeal Committee (JAP) follows a decision in May by the Court of Appeal that employers should not be regarded as liable for accidents they could not have foreseen, and that involve employees acting negligently.

It relates to a case in which two workers employed by HTM Limited (HTM) died in an accident on the A66 near Scotch Corner after a telescoping mobile lighting tower that they were moving made contact with an overhead electricity cable.

The JAP refused leave to appeal because the HSE’s petition did not raise an arguable point of law that ought to be considered by the Lords.

The Health and Safety Executive attempted to appeal to the House of Lords 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 law firm DWF commented: “This decision supports our view that employers should be able to argue that the reasonably practicable steps they are required to take by law must be considered in the context of what is forseeable and likely.

“This is the approach taken by safety professionals to risk management across the country. Moreover, the actions of wayward employees ignoring systems, training and instructions should not prevent their employer from arguing that all reasonable practicable steps had been taken and that they should be acquitted on the basis of the isolated act of negligence of their employees.”

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, and contrary to warning signs on the equipment.”

Groch believes that if this argument had been upheld, the entire risk management industry would have been transformed instantly, with the effective removal of any viable defence for employers.

Groch added: “Another worrying possibility would be that some employers might question the need to invest adequately in health and safety provisions if they have no plausible defence against criminal prosecution.”

-ENDS-

Notes to editors:

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