Monday, 14 June 2010

Risk and safety are not antonyms

If Cameron, as reported, wants to look at the 'Health and Safety culture' and 'compensation culture' he needs to ensure that he looks in the right places. It could be that more than one area needs reform.

The compensation culture is primarily a product of the deregulation of the legal services market, under which lawyers were permitted to advertise for the first time. From this grew tele-market firms of ambulance chasers flooding the public with a simple message; if you've had an injury of any sort, it must have been someone else's fault, and we can get you compensation. Most claims will be made under the tort of negligence; that the other party had a duty of care, were sufficiently proximate, were negligent in the discharge of their duty and the plaintiff suffered loss and injury as a result. So everyone tripping over an upstanding paving stone sues the council, everyone slipping on a grape on a supermarket floor sues Tesco and so on. The tightening of the balance of liability under the tort is down to the higher courts making new law; they could extend the doctrine of contributory negligence to anyone not looking where they were walking, or extend the defence of volenti non fit injuria to anyone walking out of their own front doors into the big, dangerous world. The latter defence should at least be strong enough to protect the organisers of cheese-rolling events and suchlike from being sued by participating competitors who may break a leg chasing a Cheddar down a hill.

The second issue is the scaremongering around the H&SAWA. The relevant word in this legislation is 'work'. It is designed to protect employees from losing limbs in unguarded machines, being buried in unpropped trenches, falling from heights and so on. It's nothing to do with conkers falling on passing pedestrians. But it has an enforcement body - the H&S Executive - and guilty employers are fined heavily and sometimes jailed, so 'Health and Safety' is often used as a vague bogeyman warning with an implied jail cell at the end of it. The defence to anyone trying to stop anything 'on Health and Safety' is to ask 'Let me see your risk assessment, please', which brings us onto a third point.

You cannot carry out a meaningful risk assessment on any proposed innovation or activity in isolation of the risks we already accept. I have to make this point time after time at work and my greatest allies are canals and gas. You see, even though two to five drunk persons each year drown in canals, no one seriously suggests that all canal tow-paths should be fenced, and they remain, with no protective barrier between path and water, a triumph of common sense. And if you prepare a risk assessment for piping a highly explosive substance into every home in the country the use and control of which is given to completely untrained persons including the very young and very old that says anything other than that this is fine and dandy then you're a fool.

You see, under a risk assessment, the consequences of an event may be extremely 'high' - death, multiple deaths, serious damage and injury - but if the probability of it happening is extremely low than it's fine. The entire population of the West Midlands might all fall into the unfenced canals producing a human catastrophe on a holocaust scale, but because this is extremely unlikely to happen we can leave them unfenced. Too often, the improbable consequence overcomes good judgement and conker trees are cut down, hanging baskets are banned and every puddle in the public realm is encircled with a steel palisade fence.


Brian, follower of Deornoth said...

You could have a look here for more on the horrifying dangers of canal travel...

Jeff said...

I suspect all they need to do, is to undo one of NuLabour's early decisions. NuLab made breach of any H&S regulation actionable in a civil claim for injury. If they were to restore the status quo ante then it would have a significant effect on the "try it on and see if we win" brigade.

talwin said...

Interesting post.

Blue Eyes said...

"if you prepare a risk assessment for piping a highly explosive substance into every home in the country"

I have thought about that before. The idea of creating from scratch a network than reaches virtually every useful site in the Kingdom would be a total nightmare, but what actually happens is that it evolves by iteration with each step carried out to a sufficient standard.

The fact that we survive a modern industrial urban lifestyle at all is a testament to common sense and incrementalism.

rvi said...

Indeed sir, well said - and the quicker the better. We need to stop idiocies of the type that someone spilling a hot cup of coffee in her lap after attempting to drive away with it open can successfully sue the company. Whatever happened to common sense?

No, Really? said...


Any chance of a link to this story?

AndyB said...

I do hope that something comes of all this.

I do believe that there is a distinction to be made between injury due to negligence and an injury due to an accident.

Sometimes people have to take some responsibility for their own hands and feet.

If I touch a steel work surface during the course of my work, I don't expect to get electrocuted.

If some numpty has botched up the wiring so that a live wire is touching the work surface, I want somebody's head.

If it is raining outside then common sense should tell me to be careful when I walk onto a polished floor because people might have trodden the rainwater onto the floor.

A sign to warn me would be desirable but not essential and if I fail to see that the floor is wet, I cannot blame the proprietor for a similar failing.

Gordon the Fence Post Tortoise said...

I'm happy to stnd corrected but I have been labouring under the possible misapprehension that it was possible for solicitors to insure against the failure of a negligence compensation case - so no win no fee to the punters and win-win for the solicitors?

If this is the case then surely this behaviour must be stamped out?

rvi said...

@No really at 23.15. Please Google "McDonalds sued over spilt coffee" where you will find a number of links to this story.

Hope that helps.