HSE loses appeal in unforseeable risks case

Employers cannot be found negligent on health and safety grounds when employees are acting outside their remit, the Court of Appeal has ruled.

The court has ruled against the Health and Safety Executive (HSE) which had argued that employers should be required to take reasonable steps against unforeseeable risks and that negligent actions by employees are irrelevant to the guilt of an employer.

The ruling relates to a case in which two workers employed by engineering firm HTM 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 and appealed on two points of law, relating to whether the ‘foreseeability’ of events and the actions of employees can be used as defences.

The HSE was arguing that it is irrelevant that the company 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.

Steffan Groch, partner and head of health, safety and environment at DWF Solicitors, which represented HTM, said if this argument had been upheld, it would have effectively removal any real defence available to employers.

“The Court Of Appeal 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’s 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,” he said.

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