So you’re organisation has been charged with a health and safety offence. What are your best defence methods if the incident or it’s outcome could not have been foreseen? We will delve into two examples of two organisations that have been brought to court for different offences.
A dumper truck moving top soil tips onto its side on rough ground, the driver falls out of the vehicle, is buried by spoil and dies from his injuries.
Two traffic management services operators move a 9m mobile tower light under 20,000-volt overhead power lines and are fatally electrocuted when the tower touches the power lines.
If you don’t already know these cases, consider which one might be regarded in the courts as foreseeable. In one case the employer was successful in arguing that the outcome was not foreseeable. Before you read on, decide for yourself which one you think it was.
The dumper truck driver wasn’t wearing a seat belt, and this contributed to his death. The operators moving the mobile tower didn’t lower the tower before moving it. Does that make it any easier to guess the answer? Both controls seem like common sense in the jobs these people were doing.
The dumper truck driver’s employer could present no evidence that the driver had received appropriate training. Without such training, it is entirely foreseeable that such an accident could occur. The direct employer, the contracting company and the director of the contracting company between them had to pay fines and costs of nearly half a million pounds.
The traffic management services company was acquitted. The employer was able to present evidence that the employees had been trained in the safe movement of the tower lights, and that the tower was marked with instructions to lower the tower when moving. The Court of Appeal agreed that it was not reasonably foreseeable that the workers would choose to ignore their training and the warning signs on site and move the towers in this way.
The latest Sentencing Guidelines make it clear that employers are required “to protect workers or others who may be neglectful of their own safety in a way which is reasonably foreseeable.” It is foreseeable that someone might choose not to wear a seat belt, or to take time to put equipment into a safe state before moving it. Employers who can show they have considered these possibilities, and taken all reasonable steps in terms of training, information, instruction and supervision will be in a better position to defend themselves if unfortunately an accident occurs as the result of such an employee lapse.
Many organisations have separate risk assessments and training records, whether on paper or in spreadsheets or documents. This makes the process of checking that training in hazard controls has been provided and refreshed at a suitable interval both time-consuming and prone to error.
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