Legally, where does the catastrophe lie? Is the one in a million chance the only one that matters? Jason Bleasdale

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2 CATASTROPHIC INCIDENTS Legally, where does the catastrophe lie? Is the one in a million chance the only one that matters? Jason Bleasdale

3 What makes an incident CATASTROPHIC? The extent t of wrongdoing measured against statutory or common law duties? The level of damage or personal injury caused? The level of moral turpitude or society s scale of values?

4 ISSUES which could influence any assessment What is the overall severity of outcome? What is the size of the corporate(s) involved? What, if any, individual responsibility? What would it have taken for the incident to be avoided?

5 Regulatory Start Point Section 2(1) Health and Safety at Work Act 1974 It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all of his employees. Section 3(1) Health and Safety at Work Act 1974 It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health and safety.

6 The traditional test Edwards -v- NCB Reasonably practicable is a narrower term than physically possible and seems to me to imply that a computation must be made in which quantum of risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed on the other and that, t if it be shown that there is a gross disproportion between them the risk being insignificant in relation to the sacrifice the defendants discharge the onus on them Edwards -v- NCB [1949] 1 All ER 743 at 747 (per Asquith LJ)

7 Likelihood of risk + Gravity of risk Cost in time, resources and expense

8 A futile defence? Lord Reid I do not find it helpful to consider whether this statutory duty is in every case the same as an employer s common law duty. I think it enough to say that if a precaution is practicable it must be taken unless in the whole circumstances that would be unreasonable. And as men s lives may be at stake it should be held lightly that to take a practicable precaution is unreasonable Marshall -v- Gotham Co Ltd [1954] A.C. 360

9 HMS Titanic An historical i irrelevance? Simple human error? A catastrophe that could not re-occur today?

10 Buncefield fire An incident id made famous by a unique chain of events? A risk that has now been solved?

11 What do current cases tell us? Negligence test: Stokes -v- Guest, Keen & Nettlefold Entitled to follow established practice unless shown to be flawed Adopt developing knowledge Assess quantum of risk Balance risk against probable counter measures and cost Baker -v- Quantum Clothing Judged according to general knowledge and standards of the time Focussed upon foreseeability of the THE injury

12 A difference of approach? BAKER focus upon foreseeability of injury Is this the competing of civil -v- criminal arguments? C ti f i j d t t Causation of injury as opposed to exposure to risk

13 Conflicting or competing judgements R -v- HTM [2006] Mobile work platform, overhead power lines, electrocution R -v- Porter [2008] 3 year old fell down stone steps in school yard MRSA R -v- EGS [2009] Child leans through electric gate, switches on, crushed BAKER -v- QUANTUM [2010] Machinery dangerous only if risk of injury sufficiently like to create more than minimal risk of injury

14 Is the future orange or multi coloured? R -v- Tangerine [2011] risk under ss 2 & 3 HSWA 1974 do not command an enquiry into the likelihood (or foreseeability) of the events which have in fact occurred command an enquiry into the possibility of injury.

15 Does this contrast or contradict Baker? dangerous under section 14 of the Factories Act 1961 the mere fact that a risk of injury is foreseeable as a possibility is not necessarily sufficient to make the machinery dangerous. It is dangerous only if the risk of injury is sufficiently likely to make it more than a minimal risk

16 Which route for the future? Risk: Foreseeability Reasonable practicability: causation

17 What impact on assessment by the Court? Assessment of risk What was in place to meet that risk? Actions of reasonable and prudent employer? What control measures should have been in place or would have been likely to make a difference

18 What is a viable defence? Human error? Subcontractor error? Adequacy of existing measures?

19 LEGAL UPDATE

20 Corporate Manslaughter Cotswold Geotechnical Holdings Ltd Accident in September 2008 Convicted February 2011 Director also charged 385,000 over 10 years

21 Good example? CPS lead prosecution (Special Crimes Unit) Likely fine? 500,000 + Senior management vs. Directing Mind?

22 Senior management? It changes the focus of a corporate manslaughter investigation from 'who' at the top was managing a particular activity, to 'how' the activity was being managed across the organisation. Maria Eagle, Justice Minister

23 Directing Mind? Old law

24 Senior management? New law

25 Current climate... R -v- Chargot etc Prosecution by hindsight Accident = risk Risk = prosecution Prosecution = hefty fine or worse Presumed guilty? Not Guilty?

26 Where are we now? If you have an accident, expect a ton of bricks

27 Where are we now? CORPORATE MANSLAUGHTER CORPORATE MANSLAUGHTER GROSS NEGLIGENCE MANSLAUGHTER SECTION 36 INDIVIDUAL SECTION 37: PERVERT PROSECUTIONS Consent, Connive, neglect JUSTICE SECTION 2: RISK SECTION 3: Employees PROSECUTIONS The Public LOLER REGULATION BREACHES MHSWR PUWER

28 For example CORPORATE MANSLAUGHTER CORPORATE MANSLAUGHTER GROSS NEGLIGENCE MANSLAUGHTER SECTION 36 INDIVIDUAL SECTION 37: PERVERT PROSECUTIONS Consent, Connive, neglect JUSTICE SECTION 2: RISK SECTION 3: Employees PROSECUTIONS The Public LOLER REGULATION BREACHES MHSWR PUWER

29 Magnitude of the event where is the relevance now? Elevated safety standard Public policy Heightened public expectations A more mechanised, more technological and (supposedly) more sophisticated world

30 Future developments Preliminary arguments as to admissibility of evidence relating to the death / injury Particulars of the risk being relied upon to be sought Causation arguments being presented as foreseeability of danger Post trial submissions relating to causation (and further evidence)?

31 DOES THIS ALL RAISE MORE QUESTIONS THAN ANSWERS OR IS IT SIMPLY CORPORATE BEWARE REGARDLESS OF THE MAGNITUDE OF INCIDENT?

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