Would You Say This Accident Was ‘Reasonably Foreseeable’?
I was telling you last time (catch up here!) that in the case of a health and safety breach, you’re ‘guilty until proven innocent’ in the eyes of the law. When disaster strikes, one defence is to prove that whatever happened was not reasonably foreseeable…
Now, it turns out that different people have different levels of foresight!
So if you plan to use this as a defence, you must understand how ‘reasonably foreseeable’ is defined…
‘Common Knowledge’ and ‘Industry Knowledge’…
The first test is ‘common knowledge’: would your average passer-by potentially foresee a problem? This situation is more murky than it may seem…
Let me take you back to the 16th of May, 1998. It’s FA Cup final day: Arsenal vs Newcastle. Up the M1 at Fresha Bakeries in Leicestershire, two men are told to enter a commercial oven. Normally the oven has to cool for 8 hours before anyone can enter for maintenance, but the men enter after only two. They climb in through the bottom and onto a conveyor used to take the dough through the machine. All they’re wearing for protection are all-in-one suits.
Let me ask: based on common knowledge, have any warning bells jangled in your head??
The centre of the oven is still 100°C. Once inside, the men become trapped. It’s not possible to reverse the conveyor, and there is no exit out of the oven. It took 17 minutes – the time it took for the conveyor to pass through the oven – before other workers could help the men. Neither survived.
You’re left asking: why? Surely it’s common knowledge that a commercial oven must cool properly before anyone can enter?
The trapped men were indeed fully competent. Besides, everybody knows that a commercial oven must get hot and stay hot for a long time. So under the ‘common knowledge’ test, it’s not reasonably foreseeable that the workers would go in after two hours.
So why was the company fined?
Well, you have to ask what was going on in the workshop leading up to the cup final. Was there banter, or a sweepstake? It’s common knowledge that there is a culture of football fever in the UK and no one wants to watch an important match on “replay”. Did the men knowingly cut corners to finish in time for the game? Most likely, it would seem. Anyone who has worked in a factory environment might imagine the circumstances in which that peer pressure might happen.
So there’s common knowledge around this example, but industry knowledge too…
Industry knowledge would consider the whole working culture and workshop environment. An outsider wouldn’t usually know it, but anyone ‘on the inside’ must make it their business to know it, and make sure that anyone who reports to them knows it too.
From that angle, the events above were reasonably foreseeable and the company was fined £373,000. (R v Freshas Bakery).
As a second example of industry knowledge, imagine it’s a dull, Tuesday morning. You’re on a rail platform on your way to a client meeting. As the train pulls up you notice – for the first time – a thin orange line that runs around the outside of the carriage..
You as a passenger may never have noticed the orange line, but anyone working in the rail industry would know exactly what it means. The orange line is called the ‘exclusion line’. It’s the line you can’t work above without risk of electrocution. So, this is another example of ‘industry knowledge’.
If you work in the rail industry, you need to make sure you know what you need to know. Ignorance, i.e. “Oh I didn’t know that!”, is no defence!
Expert Knowledge
The third and final test is ‘expert knowledge’. Expert knowledge only comes into play in industries where you might need expert help to determine potential risks. (Nuclear power, for instance).
So generally, common knowledge and industry knowledge are the two main tests of whether an accident was ‘reasonably foreseeable’.
The risks I’ve described above may seem blindingly obvious in hindsight, but human tendency is to downplay risks in the present.
If you have a vested interest in H&S at your organisation, prevention is much better, cheaper and more life-affirming than cure! Ultimately you as an employer are responsible for the acts and omissions of your employees: regardless of whether they are following their training, or simply fooling around!
Next time we’ll look at the bottom-line impact on your insurance premiums :-).
Moira
P.S. For health and safety training, including on-site IOSH and NEBOSH courses, head to www.safety-now.co.uk. There’s never a dull second – and that’s a promise!
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