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June 30, 2014

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Smoke and mirrors – foresight not hindsight

Kevin Bridges, partner for Pinsent Masons LLP, looks at the issues of foresight and hindsight in health and safety cases.

It is a common complaint voiced by health and safety professionals in the aftermath of a work-related incident that investigators have the advantage of seeing events through the prism of hindsight.  Hindsight bias is a well-established phenomenon and its presence is something that judges dealing with health and safety prosecutions are increasingly coming to recognise.

The criminal proceedings following the tragic multi-vehicle collision, which resulted in 7 deaths and many more injuries, that occurred on the M5 motorway near Taunton in November 2011 has shed further light on the possible approach courts are taking when dealing with these kinds of issues in the context of prosecutions for breaches of sections 2 or 3 of the Health and Safety at Work etc Act 1974 (HSWA).

The prosecution of Geoffrey Counsell in December 2013 followed a joint investigation by Avon and Somerset Police and Taunton Dean Borough Council into the crash, which resulted in seven deaths and many more injuries. Eyewitnesses reported driving into thick fog shortly after a firework display had finished at Taunton Rugby Club, which was around 200 metres away from the crash site.  Some witnesses reported seeing smoke from the fireworks drifting onto the motorway shortly before the crash, although other eyewitness accounts strongly suggested that the preponderance of smoke drifted in the opposite direction.

Mr Counsell ultimately faced trial for an offence under section 3(2) HSWA on the grounds that he had failed to ensure that persons who may be affected by the display were not exposed to risks to their health and safety.

The first hurdle for the prosecution under section 3 HSWA is that it must prove exposure to a ‘material’ risk before the burden passes to the defence to show that it did everything reasonably practicable to prevent that exposure.  A material risk is one that any reasonable person would appreciate and take steps to guard against, where the possibility of injury or danger is reasonably foreseeable.

Mr Counsell defended the charge on the basis that:

there was no evidence that the smoke from the fireworks had contributed to the reduced visibility on the motorway. There was already heavy fog in the area that evening;
the Highways Agency, Taunton Dean Borough Council and Avon and Somerset Constabulary were all consulted and made aware of the display and no objections were raised;
no guidance or publication regarding firework displays in existence at the time mentioned the possible hazards and risks posed by firework smoke to visibility on nearby roads.

Mr Counsell’s defence team submitted to the court that the jury could not properly conclude that there had been exposure to a material risk.   The presiding judge, Mr Justice Simon, agreed and immediately directed the jury to acquit Mr Counsell.  Most strikingly in his judgment he commented that the prosecution case was heavily weighted on hindsight and the prosecution had incorrectly relied on consequence rather than foresight.

For employers and safety professionals it should be welcomed that the courts are beginning to direct themselves towards what risks it was reasonable for an organisation to have foreseen, rather than holding duty holders up to an impossible standard determined with the benefit of hindsight. I leave you with a crucial passage from the speech of Lord Dyson in the Supreme Court in the case of Baker v Quantum Clothing Group Limited [2011] which sums it up perfectly:

“Safety must be judged by the understanding and standards of the times.  Where these are set out in a clear and official publication such as a Code of Practice issued by a relevant government department based on the most up to date expert advice, they are likely to set the bounds of what risks are reasonably foreseeable and acceptable and what is reasonably expected of an employer.”

Kevin is a partner in Pinsent Masons’ regulatory and investigations team. His main experience is in health and safety, fire safety and environmental law and related criminal and civil litigation. Please contact [email protected]

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Hilda Palmer
Hilda Palmer
9 years ago

But coroner taking up issues of training etc re firework displays near roads and making a report

http://www.bbc.co.uk/news/uk-england-somerset-27925790

Nick
Nick
9 years ago

A very sensible decision for ‘reasonably foreseeable’.