Two recent fatal accident prosecutions illustrate the importance of focussing attention on the presence or absence of adequate risk assessments in proving fault. The same approach will now greatly assist in establishing fault in civil damages claims because of the Kennedy case.
DUTY TO RISK ASSESS
The basic duty in the Management of Health and Safety at Work Regulations 1999 is as follows:
Reg 3 (1) Every employer shall make a suitable and sufficient assessment of—
(a)the risks to the health and safety of his employees to which they are exposed whilst they are at work; and
(b)the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking.
SLIT TRENCH FATALITY
Balfour Beatty Utility Solutions Limited were fined £2.6 million at Preston Crown Court after an employee was killed when a 2.4 metre deep slit trench he was working in collapsed on him in Lancashire. The Co. pled guilty to breaching Section 3(1) of the Health and Safety at Work etc. Act 1974, Regulation 31(1) of the Construction (Design and Management) Regulations 2007 and Regulation 3(1)(a) of the Management of Health and Safety at Work Regulations 1999. The company was also found liable for £54,000 costs.
FALL FROM HEIGHT
In another prosecution a Birmingham building and maintenance company, H20 Plumbing Services Limited pled guilty to breaching Section 2(1) of the Health and Safety at Work etc. Act 1974, and was fined £100,000 and ordered to pay costs of £25,000 after a worker died as a result of falling from the roof of a five-storey building. Two workers were mixing concrete on an unprotected roof. A worker trying to retrieve a tarpaulin which had partly blown off overbalanced and fell off the roof to his death. HSE's Inspector said afterwards that the firm had provided the men with equipment and a system that was not suitable for the task at hand. She said:
“A suitable and sufficient assessment of the risk, suitable planning, implementation of suitable control measures and adequate and effective site supervision would have prevented this incident from occurring.”
Because a work activity should not proceed until a suitable risk assessment is in place, in cases like these where the court found that a proper assessment would have revealed the risks it had no difficulty finding that the accident would have been likely to have been avoided had the step been carried out. Claimants in civil damages cases can similarly rely on the more stringent statutory requirements in support of their arguments of fault.