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FEATURES - HEALTH AND SAFETY WARNING

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As one officer at Barrow-in-Furness could be about to discover, the consequences of taking your eye off health and ...
As one officer at Barrow-in-Furness could be about to discover, the consequences of taking your eye off health and safety can be devastating, says Dr Nicholas Dobson

The August 2002 outbreak of legionnaire's disease in Cumbria caused by a faulty air-conditioning system which killed seven people and made 170 others sick has now resulted in manslaughter charges against both Barrow-in-Furness BC and one of its senior officers.

The charges will no doubt cause some shivers of anxiety - not to say examinations of conscience - among many council managers.

But what is manslaughter in this context? Essentially where death is caused by a reckless - that is, failing to consider or heed a gross and obvious risk - or grossly negligent act or omission. This requires a higher degree of negligence than would establish civil liability - breach of a legal duty to exercise the proper care demanded by the circumstances. For a person to be guilty of manslaughter the recklessness or negligence must have been a substantial cause of the death and some personal misconduct or negligence on the part of the accused is required.

A corporate entity such as a company or council can also be subject to criminal liability if such can be established on the part of those who represent the directing mind or will of the organisation so that the organisation is culpable rather than those acting on its behalf.

So what sort of responsibility can be relevant for these purposes? The Health and Safety at Work Act 1974 contains a range of duties applicable to many council officers. For example, s2 imposes a duty on every employer to ensure, so far as is reasonably practicable, the health, safety and welfare of staff at work. It specifies particular matters to which the duty extends, including, so far as is reasonably practicable, safe and healthy provision and maintenance of plant and systems of work, provision of relevant information, instruction, training and supervision and a safe working environment.

Importantly as regard s the public, s3(1) casts a duty on 'every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety'.

The key is the active engagement with and understanding by individual managers of their particular health and safety responsibilities. It is an unfortunate fact of life that something is never an issue until it becomes an issue. So managers, driven with the pressure of providing improved service delivery against the ever-present spectre of the comprehensive performance assessment, may sometimes allow their eyes to stray from the health

and safety ball. But they do so at their peril. For despite perhaps years of dedicated work, a prosecution is likely to provide the ultimate career definition.

It is therefore wise to conduct a regular healthcheck of health and safety compliance.

Dr Nicholas Dobson

Partner, head of local government law, Pinsents

LGC

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