Accident Culpability

[Ian Adams]

Would the rules/procedures that apply in a corporate manslaughter case be the same as those followed in a "club" manslaughter case ?

Specifically, in corporate law, as I understand it, the business owner/director/(whatever) directly responsible for ensuring HSE was folllowed (that failed, and lead to a death) would be held accountable even if he/she was not present.

Could a club member (Secretary/Chairman/Safety Officer etc) have his neck in the noose if he was not present at the time of the incident ?

Ian

 

[Les W]

I think that would depend on what level of control the particular member (Secretary/Chairman/Safety Officer etc) had over the members actually carrying out the events leading to the accident/incident.

If there was no control then it is difficult to see how they could be culpable.

If the people actually working the winch had more knowledge of safe working practices than the club officers then they would be the experts and the club officers would be unlikely to be in the firing line.

In corporations there are very clear management structures and routes of responsibility. In clubs these are less obvious. Most club officers are only responsible for their own particular post, e.g. meets secretary books meets, treasurer looks after the finance, also they are not normally experts but are volunteers.
As a committee they may make some quite important decisions, but again in a "non expert way". The law deals with what is reasonable and if your particular skill was finance then it is not reasonable to hold you responsible for a mechanical failure.

It is still all opinion, only a court can give you a definitive answer and ideally we don't actually want to get to this as it means something went seriously wrong.

 

[peterk]

This may aid deliberations http://en.wikipedia.org/wiki/Manslaughter_in_English_law#Manslaughter_by_gross_negligence

 

[graham]

Would the rules/procedures that apply in a corporate manslaughter case be the same as those followed in a "club" manslaughter case ?

No idea, but, given the lack of case law in this area, I suspect that even an opinion from a barrister would be given with a lot of hedging.

Specifically, in corporate law, as I understand it, the business owner/director/(whatever) directly responsible for ensuring HSE was folllowed (that failed, and lead to a death) would be held accountable even if he/she was not present.

Could a club member (Secretary/Chairman/Safety Officer etc) have his neck in the noose if he was not present at the time of the incident ?

Quite possibly, yes, given that you have given insufficient detail to determine exactly where any negligence might lie.

Ian

You clearly have a problem with this. The best advice that I can give to satisfy your peace of mind is "don't get involved,"

 

[AndyF]

Home made winch or bought off the shelf winch?

Off the shelf wince rated for critical safety use?

If "not rated" for human winching then I guess/think the winchman is going to jail.

Also depends if the "club" is considerd a "legal entity". Five blike who go digging every Thursday call themselves the "Thursday Diggers Club" may not be the same as one having bank account and constitution minutes etc. All that stuff is best avoided for the reason it makes you a "legal entity"

 

[Andy Sparrow]

A person descending on the winch falls to their death (perhaps the rope (& safety rope) both snap or perhaps they were fumbling with their attachments etc.).

Who is culpable and liable in the following cases;

1) The victim was a club member
2) The victim was a visitor with a BCA green card
3) The victim was a visitor and signed a liability waiver
4) The victim did not sign a liability waiver and had no BCA green card and was not a club member

I am joining this discussion belatedly and this point may have been made. 

I think it's the wrong question.  The insurance status of the victim, or the signing of  a waiver, has no bearing on where the liability rests.  The person who is culpable is the person, person or body that has failed in their duty of care to maintain the winch.

 

[khakipuce]

Bottom line is that they will need to show negligence.

If a load of idiots with no skills who didn't know better were to do it then I would expect the courts to find no negligence.
...

I think this more down to the victims expectation rather than the actual experience of the operators. For example if you go caving with someone you met on and internet forum and they say "bring some wellies and a mars bar" so you go and get injured you really can't complain. If however a person purports to represent a club offering and intro to caving day, offers to provide equipment, etc. then you have a higher expectation that they will look after you - they may still be an idiot, or have lied.

Also there has been some talk about "guilty until proven innocent". I just don't believe it is so clear cut. I do agree that if there is an approved CoP and you were not following it then you are going to have a hard time in court. However they still have to show that there is liability, then identify the person(s) or entity that is liable and then show that sufficient care was not exercised.

It is still for the victims side to show you are liable and it is your defence that you took all reasonable steps to exercise your duty of care.  However it is extremely hard to imagine a situation where you managed to take all reasonable steps but did not comply (even if unwittingly) with the CoP.

 

[ttxela]

Also there has been some talk about "guilty until proven innocent". I just don't believe it is so clear cut. I do agree that if there is an approved CoP and you were not following it then you are going to have a hard time in court. However they still have to show that there is liability, then identify the person(s) or entity that is liable and then show that sufficient care was not exercised.

It is still for the victims side to show you are liable and it is your defence that you took all reasonable steps to exercise your duty of care.  However it is extremely hard to imagine a situation where you managed to take all reasonable steps but did not comply (even if unwittingly) with the CoP.

My understanding is that the reverse burden of proof would definitely apply if it was a ?work? situation, this seems to sum up the current position quite well; http://www.dwf.co.uk/files/News/e977c96e-fa89-4939-8960-d1e2eb806ad1/Presentation/NewsAttachment/f3886538-a757-4eeb-8c0b-d31136dca78b/Article%20REB3%20-%20Chargot.pdf

So;

• Is this a situation where prosecution is likelly under H&S legislation?
• Is there an ACOP that covers winching people ?

 

[graham]

Also there has been some talk about "guilty until proven innocent". I just don't believe it is so clear cut. I do agree that if there is an approved CoP and you were not following it then you are going to have a hard time in court. However they still have to show that there is liability, then identify the person(s) or entity that is liable and then show that sufficient care was not exercised.

It is still for the victims side to show you are liable and it is your defence that you took all reasonable steps to exercise your duty of care.  However it is extremely hard to imagine a situation where you managed to take all reasonable steps but did not comply (even if unwittingly) with the CoP.

Concur, it's not so much  "guilty until proven innocent" more that if a CoP exists then it's far easier to prove, or disprove, negligence as there is an obvious standard to measure behaviour against.

However, I remain concerned about the way in which jackalpup is expressing his concerns; it's almost as if he has a far more specific scenario in mind.

 

[Bob Mehew]

Would the rules/procedures that apply in a corporate manslaughter case be the same as those followed in a "club" manslaughter case ?

Specifically, in corporate law, as I understand it, the business owner/director/(whatever) directly responsible for ensuring HSE was folllowed (that failed, and lead to a death) would be held accountable even if he/she was not present.

Could a club member (Secretary/Chairman/Safety Officer etc) have his neck in the noose if he was not present at the time of the incident ?

First the law only recognises individual persons and certain "body corporates" such as plc companies and other bodies set up under statute like the National Trust.  (This is obviously not an exhaustive list.)  A typical club is an unincorporated body and as such is not recognised in law.  What happens is that if there is a wish to take a club to a court of law, then as a prosecutor, one takes the members of the club as individuals who are jointly the club. 

Now comes the hedge - As I understand it and I have not specifically read up on corporate manslaughter law, the act was set up to enable a body corporate to be prosecuted because of prior case law which showed that a body corporate could not be prosecuted for manslaughter which is a different law to corporate manslaughter.  So corporate manslaughter only applies to body corporates.  Otherwise it is going to be some individuals who are prosecuted for manslaughter or what ever.

Under health and safety (H&S) law it is not just the employer who is liable to be prosecuted, individuals can also be prosecuted.  The first consideration here is whether or not the activity from which the death (for example) arose can be demonstrated to be an activity conducted as part of a 'work activities'.  That last phrase needs a bit of explanation and I should add is not a legal phrase.  H&S law was set up to minimise the death and injury of people from work activities.  But because of concerns that some naughty people might try and claim they were not conducting a work activity, the definition of a work activity was made rather broader than one might first think.  So a club might well overstep this blurred boundary and find themselves open to a prosecution under H&S law.

You ask about a club secretary being in the firing line.  The simple answer is very much so.  As I tried to indicate in my previous post, although potentially every member of the club is liable to being sued under civil law, those closer to the activity from which the death (for example) arose, are more likely to be caught.  In terms of criminal law (such as manslaughter or H&S) then whilst it depends upon the circumstances, the likelihood is that it will be those members who were close to the activity from which the death (for example) arose who might face the charges.  Club officials are often the first in the firing line when things go wrong.  (Which is why having insurance cover for the club can be important -  though I don't really wish to go down that avenue.) 

To expand on a detail of your original post, take the winch.  AndyF brought up some interesting points.  Lifting gear, which covers winches, are subject to more stringent H&S law which includes a requirement to thoroughly examine the winch.  A failure to do so is a clear breach - no ifs no buts, see Reg 9 of LOLER if you want to get into detail (for which there is an ACoP by the way - go to the HSE web site and search for LOLER).

And as Graham indicates, is there a specific scenario?  If so, I would recommend that it is not initially discussed on this open forums until the end point is known as it cold be used in evidence against you.  I would also add that I am aware that the two winch meets at GG are run by reputable clubs who have talked with BCA's Legal and Insurance Officer over requirements so they are covered by insurance.  So it can be done but it does take a lot of effort.

 

[graham]

Good post, Bob. 

 

[khakipuce]

My understanding is that the reverse burden of proof would definitely apply if it was a ?work? situation, this seems to sum up the current position quite well; http://www.dwf.co.uk/files/News/e977c96e-fa89-4939-8960-d1e2eb806ad1/Presentation/NewsAttachment/f3886538-a757-4eeb-8c0b-d31136dca78b/Article%20REB3%20-%20Chargot.pdf

So;

• Is this a situation where prosecution is likely under H&S legislation?
• Is there an ACOP that covers winching people ?

I know this is terribly hairsplitting, but I'm in that kind of mood (probably because I still haven't warmed up from last night's trip) and your link seems to emphasise the point, how did the accident happen if you did everything you were supposed to?

So the prosecution is basically saying "if you drove from Brum to Manchester in under an hour you were speeding", normally the court would require the prosecution to give evidence of exactly when the offence occurred, who witnessed it etc. but in this case the court is waving that higher standard of evidence, presumably because it is all to easy for employers to slip out of a prosecution because the detailed evidence could not gathered. Evidence of an accident, and that the accident occurred at the work place and that there was some failure of duty of care by the employer would still be needed.

If we get back to caving, we are back to what happened and how. At a guess I would say the three most likely accidents are falls(inc. trips and slips), falling rocks and exacerbation of existing medical conditions. You could be following all the rules and regs and one of your party trips and breaks a wrist, I doubt in that situation the burden of proof would be with you, however if you take a diabetic on a 10 hour trip with no insulin and they go into a coma, it might be down to you to show that you took reasonable steps ensure that they fully understood what they were getting into, how physical and long the trip would be etc.

 

[ttxela]

My understanding is that the reverse burden of proof would definitely apply if it was a ?work? situation, this seems to sum up the current position quite well; http://www.dwf.co.uk/files/News/e977c96e-fa89-4939-8960-d1e2eb806ad1/Presentation/NewsAttachment/f3886538-a757-4eeb-8c0b-d31136dca78b/Article%20REB3%20-%20Chargot.pdf

So;

• Is this a situation where prosecution is likely under H&S legislation?
• Is there an ACOP that covers winching people ?

I know this is terribly hairsplitting, but I'm in that kind of mood (probably because I still haven't warmed up from last night's trip) and your link seems to emphasise the point, how did the accident happen if you did everything you were supposed to?

So the prosecution is basically saying "if you drove from Brum to Manchester in under an hour you were speeding", normally the court would require the prosecution to give evidence of exactly when the offence occurred, who witnessed it etc. but in this case the court is waving that higher standard of evidence, presumably because it is all to easy for employers to slip out of a prosecution because the detailed evidence could not gathered. Evidence of an accident, and that the accident occurred at the work place and that there was some failure of duty of care by the employer would still be needed.

If we get back to caving, we are back to what happened and how. At a guess I would say the three most likely accidents are falls(inc. trips and slips), falling rocks and exacerbation of existing medical conditions. You could be following all the rules and regs and one of your party trips and breaks a wrist, I doubt in that situation the burden of proof would be with you, however if you take a diabetic on a 10 hour trip with no insulin and they go into a coma, it might be down to you to show that you took reasonable steps ensure that they fully understood what they were getting into, how physical and long the trip would be etc.

Getting a bit away from the point but my understanding is that the key lies in the wording of S2 & 3 of the H&S at work act requiring you to ensure the ?Health, Safety and Welfare?  of employees and non employees.
Therefore if someone is injured/killed by definition you haven?t ensured their safety, and this is the starting point. It?s then up to you to show that the measures you took were as much as you could reasonably be expected to have taken.
I?m definitely no expert though ? I?m not sure if this sort of legislation would be used in this case?

 

[graham]

My understanding is that the reverse burden of proof would definitely apply if it was a ?work? situation, this seems to sum up the current position quite well; http://www.dwf.co.uk/files/News/e977c96e-fa89-4939-8960-d1e2eb806ad1/Presentation/NewsAttachment/f3886538-a757-4eeb-8c0b-d31136dca78b/Article%20REB3%20-%20Chargot.pdf

So;

• Is this a situation where prosecution is likely under H&S legislation?
• Is there an ACOP that covers winching people ?

I know this is terribly hairsplitting, but I'm in that kind of mood (probably because I still haven't warmed up from last night's trip) and your link seems to emphasise the point, how did the accident happen if you did everything you were supposed to?

So the prosecution is basically saying "if you drove from Brum to Manchester in under an hour you were speeding", normally the court would require the prosecution to give evidence of exactly when the offence occurred, who witnessed it etc. but in this case the court is waving that higher standard of evidence, presumably because it is all to easy for employers to slip out of a prosecution because the detailed evidence could not gathered. Evidence of an accident, and that the accident occurred at the work place and that there was some failure of duty of care by the employer would still be needed.

If we get back to caving, we are back to what happened and how. At a guess I would say the three most likely accidents are falls(inc. trips and slips), falling rocks and exacerbation of existing medical conditions. You could be following all the rules and regs and one of your party trips and breaks a wrist, I doubt in that situation the burden of proof would be with you, however if you take a diabetic on a 10 hour trip with no insulin and they go into a coma, it might be down to you to show that you took reasonable steps ensure that they fully understood what they were getting into, how physical and long the trip would be etc.

Getting a bit away from the point but my understanding is that the key lies in the wording of S2 & 3 of the H&S at work act requiring you to ensure the ?Health, Safety and Welfare?  of employees and non employees.
Therefore if someone is injured/killed by definition you haven?t ensured their safety, and this is the starting point. It?s then up to you to show that the measures you took were as much as you could reasonably be expected to have taken.
I?m definitely no expert though ? I?m not sure if this sort of legislation would be used in this case?

Well, actually, it's not getting away from the point because it's at the heart of jackalpup's original request and certainly at the heart of both Bob's clarification of H&S law and khakipuce's points and can be boiled down to "Who, exactly, owed this person a duty of care and was this properly exercised?"

 

[ttxela]

I guess so 

I just had a look at the HSE's guidance on their website and it seems to suggest that LOLER is not intended to apply to equipment for leisure use when it is under the control of the user. Although obviously a winch isn't under the direct control of the user presumably this would apply if SRT was used?

It also makes it clear that equipment used for lifting people which is not neccessarily designed to do so can be used for that purpose if there is no practical alternative so that may help address some concerns as well.

They give an example of a crane used for bungee jumping which would come under LOLER....

 

[ttxela]

This document on the application of H&S law to private clubs may also be of interest;

http://www.hse.gov.uk/foi/internalops/fod/oc/300-399/331_3.pdf

Although it would be worth checking for updates as it's dated 2004.

 

[Ian Adams]

Do the H&S safety ?at work? rules actually apply to a caving club who is hosting a winch trip ?

In other words, would it be within the remit of HSE to investigate the ?accident? ?

Additionally, are the mechanics different if the visiting caver was descending using SRT on ropes rigged by the host club and a fatal accident occurred ?

Ian

 

[Maisie Syntax]

In the instances we've been caught up in situations such as this, we've always relied on the tried and tested method of run away quick and deny everything. Has been effective to date.

 

[potholer]

If true, that'd be another thing probably best not mentioned on open forums.

 

[khakipuce]

ttxela - good find on the HSE guidance.

Jackalpup - the proper name of the 1974 act is IIRC "The Health and Safety at work, etc. Act"

The "etc." is important because it implies other things besides work, I believe the act applies to fairgrounds for example. However this topic has wandered away a bit from your orginal question which seemed to be about liability and insurance which are civil matters. However if you started charging for use of the Winch ...