Accident Culpability

[Ian Adams]

It has wandered off but has wandered back in (and out)....

I think the financial liability has been answered (damages etc.) in that the club members are liable but also that the BCA insurance (our green cards) and the clubs BCA access insurance covers all of that (please correct me if that isn't right).

The manslaughter aspect still hasn't (not sure if it is possible to). There has been a lot of reference to H&S and there is reasonably clear corporate law in that respect. It still isn't clear (unless I have not read properly) whether or not a caving club incident is within the remit of the HSE or, indeed, against whom a manslaughter charge might be brought if;

1) A winch incident resulted in death
2) The use of ropes rigged by a club resulted in a fatal accident during SRT

I know the examples are vague (because nothing has actually happened to cite); it is the underlying principal of potential prosecution that I am trying to understand.


:-\

Ian

 

[Bob Mehew]

Re insurance cover - beware that there are limitations to its coverage.  You will need to consult with the BCA Legal and Insurance Officer to get a fuller ruling.  My guess is that winch meets are not covered since as I understand it, the GG clubs did a special presentation to obtain it.

Corporate manslaughter can only apply to a body corporate - so it is not relevant to an unincorporated club. 

What is manslaughter is a mater based on the circumstances.  The wiki reference seemed to give a moderate understanding - but it was not my area of specialism.  It can only be used against individuals but again the circumstances will determine who from the club membership might get charged.  And no one can offer any further guidance without a hell of a lot more detail of the circumstances.  To give you some perspective, I have spent weeks collecting evidence and then days working out who best is to be charged.  It ain't simple.  I therefore doubt if you can provide sufficient detail for any one to give reasonably definitive advice (even if they were prepared to do so - given the potential for liability arising from that advice).

HSE may come and investigate a fatal accident or one where a serious injury has occurred for a variety of reasons which in part will depend upon the circumstances.  The simplest summary is to expect it and be grateful if it does not arise.

The other point worth making is that in a civil case the claimant (the injured party) will potentially use as evidence any piece of advice regarding what is reasonable to have been done.  So there is a hell of a lot of advice / legal requirements produced by the HSE which may well have an impact of the civil case even if the defendant is not charged under H&S law.

To understand the principal of a potential prosecution, one first has to identify the piece of law which it is alleged has been broken.  Take as a simple example HASWA Sec 8 which states "No person shall ... interfere with ... anything provided in the interests of ... safety ... in pursuance of any of the relevant statutory provisions".  (Don't worry about the ... for this example.)  So the questions which I would have to prove are: that you were that person, that you did interfere with a piece of kit as opposed to just fiddled with it, which in turn means showing what it's safety function was and why your interference stopped it being available or why it was interference (what does that word mean? sorry a rhetorical question), that the piece of kit was provided in the interests of safety, which statutory provision required it, was the piece of kit still in a situation of for use at work (even though you might not be at work).  And having just written this, I would almost certainly find I had missed a number of other points, like demonstrating the person who provided the lit was an employer. 

Lastly, some debate was made about the reverse burden of proof.  The relevant piece of law is Sec 40 of Health and Safety at Work etc Act 1974 as amended (see http://www.opsi.gov.uk/acts/acts1974/pdf/ukpga_19740037_en.pdf for a copy of the original - I seem to have lost the location of a revised version) and states:

"In any proceedings for an offence under any of the relevant statutory provisions consisting of a failure to comply with a duty or requirement to do some thing so far as is practicable or so far as is reasonably practicable, or to use the best practicable means to do something, it shall be for the accused to prove (as the case may be) that it was not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement, or that there was no better practicable means than was in fact used to satisfy the duty or requirement."

E&OE of course.  So it applies more broadly than just situations described in ACoPs.  Sorry for getting that wrong.

I am not sure that is much help, but what you are asking is in some respects like asking how long is a piece of string.

 

[khakipuce]

On Criminally negligent manslaughter Wikipedia has this

In English law gross negligence is the test for manslaughter. The crime was defined in R v Bateman as 'to show such disregard for life and the safety of others as to amount to a crime against the state and conduct deserving of punishment.[18]  In R v Adomako the House of Lords affirmed R v Bateman, and set out the five elements required for negligence:

• A duty of care owed by the defendant to the victim.
      A breach of that duty.
      A risk that the defendant's conduct could cause death.[19]
      Evidence that the breach of duty caused the victim's death.
      The defendant fell so far below the standards of the reasonable man in that situation that he should be labelled grossly negligent and deserving of criminal punishment.

It is for the jury to decide what constitutes 'grossly negligent behaviour'.

Seems to sum it up, for it to be manslaughter you need to have fallen "so far below the standards of the reasonable man in that situation". I.e you didn't fasten the winch down, you used bailing twine for the cable.

I can't help but think you need to step back from this and wonder how exactly you are going to kill someone - you are not ... right  :-\  You are going to get a decent winch approved for man lifting, you are going to fasten it down to a solid foundation that you have inspected,  you are going to get some training on how to operate the winch (the sales or hire company will do this), you are going to tell your insurance company what you are doing, you are going to plan it out and think it through and make sure EVERYONE anywhere near it understands exactly what is going on, what to do if it fails, you are going to have a back up plan if someone is stuck half way down the shaft ... so, best bet is not to kill anyone.

To fail to prepare is to prepare to fail

 

[Ian Adams]

Bob,

Thanks for your post and advice. although a little complicated, I think I have my head around it and it basically relieves my concern (and perhaps other winch users) ....

Khakipuce,

Thanks also for your post. I know the answer to some of the points you raise but not all of them. I am not a winch operator, nor an engineer, nor directly involved in it although I am a member of the club and there are things that I can "see" (such as it is firmly bolted down, there is a backup rope which the descendee is attached to by a shunt, the operator(s) clearly (appear?) to understand exactly what they are doing etc ..)

I believe this thread (even with its digressions) has helped to bring some understanding to our (cavers) responsibilties and what might happen if we get it wrong.

I am grateful to everyone who has posted and open to anything further which is helpful in understanding more.



Ian

 

[ChrisB]

"In any proceedings for an offence under any of the relevant statutory provisions consisting of a failure to comply with a duty or requirement to do some thing so far as is practicable or so far as is reasonably practicable, or to use the best practicable means to do something, it shall be for the accused to prove (as the case may be) that it was not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement, or that there was no better practicable means than was in fact used to satisfy the duty or requirement."

That's a useful quote, because it ties the "reverse burden of proof" to the duty to keep risk "as low as reasonably practicable" (ALARP).  I understand a bit better now where the "reverse burden" comes from - also thanks to ttxela for the gwf link and apologies for doubting ttxela's original post on that - my knowledge was out of date there.

The point about ALARP is that there is a duty under HSWA to reduce risk - unless it is not reasonably practicable to do so. There's no threshold below which you can say "that's a small risk so I can ignore it" - all you can say is "for that particular risk the benefit from reducing or removing it is so small that it's grossly disproportionate to the time, cost and trouble of doing so - and thus I don't need to do anything about it". That's how "reasonably practicable" is defined. So something quick and easy like checking that gate on a krab isn't sticking open could be considered necessary, even if the krab wasn't crucial, but detailed checking of the whole length of the main hoist rope every day could be disproportionate, even if failure of the rope would be serious. ALARP is a useful principle because it ties in with common sense - if something would be difficult or expensive but have little effect on safety, you don't have to do it - which is the justification for not doing some of the daft things that H&S gets blamed for. On the other hand if would be easy, you probably do have to do. One caution; if there's specific law which says you have to do something, ALARP isn't a get-out, ie, if LOLER says you have to mark lifting equipment with the SWL, then it doesn't matter how difficult it is, you have to do it.

The reverse burden, I'm assuming, comes in because ALARP says you must reduce the risk unless the effort is grossly disproportionate - rather than saying you don't have do anything unless the risk is high. So if you've made a decision that a particular improvement is not reasonably practicable, I can see the logic in the law wanting you to demonstrate that.

Chris

 

[Bob Mehew]

I am not going to take issue with ChrisB's statement because it is not that bad a statement; but take care if you want to use it.  More information can be found at http://www.hse.gov.uk/risk/theory/alarp.htm .  One point I would observe, I suspect a major reason for Sec 40 was to make the life of the prosecutor easier. 

After all, how does one as a prosecutor prove WHY some one did what they did?  What they did is not too difficult to show but getting inside the mid of some one to show why - very tricky.

 

[exsumper]

You've also got to consider the moral attitude of the lawyer representing the family of the deceased or injured.  They may most likely be one of those  (who seem now to be much in the ascendent). Who are more concerned with creating a precedent that leads to much further work and enrichment and  that have completely lost touch with any concept of justice. If it wasn't for lawyers such as these,  town councils would be able to set up a help line for people who have tripped over a paving stone, that relays a simple message that states "watch where your bloody walking " instead of having to pay out millions of pounds after trivial court actions bought by the stupid and the clumsy with the aid of their greedy counsel. As well as vastly increasing our council tax. These scumbags are also responsible for the considerable extra costs regarding insurance, that anyone involved in "dangerous"  sports have to pay.

 

[Rachel]

I haven't got any extra knowledge to add to the pot, just another question...

How far is the insurance engineer liable? If say, he/she carried out the inspection prior to the start of winching and then the winch failed catastrophically within the hour, common sense seems to be that the winch operator was working on advice from an expert, therefore the expert is liable.

And yes, I know common sense often has nothing to do with it  :-\