In law, is safety & risk the same? Is causation a factor? I knocked this quickly up over the weekend (so expect mistakes…).
It’s a legal appeal case – they explore whether, in the legal sense, safety and risk are different, if the Crown has to prove the causative agents, and the extent to which the Crown must prove that risk derives from the defendant’s activities.
I found it interesting to contrast the legal interpretation against a contemporary safety science view.
1) What is the relationship between ‘safety’ (s 2) and ‘risk’ (to safety) (s3)?
· “it is plain that these two concepts are the same thing”
· “Safety is not ensured…if there is a relevant risk to the safety of … employees”
2) Where there has been an injury is the Crown required to prove that the offence caused it?
· “Causation of the injury is not an ingredient of either offence”
· “The fact of the injury is evidence of the existence of the risk”
· “The offences can just as well be committed when there has been no injury as when there has”
· “The offence(s) may well be alleged to have been committed on the day of the injury. But that does not mean that the offence has as one of its constituents the causing of any injury at all”
· “The offence lies in the failure to ensure safety so far as reasonably practicable, ie in exposure to risk of injury, not in the doing of actual injury”
· “the Crown alleges that the offence did in fact cause injury or death. This has the potential to divert attention, unless care is taken, away from the real issue and onto the mechanics of the accident”
3) To what extent must the Crown prove that the risk ‘derives’ from the defendant’s activities?
· “risks…are those materially related to the activities of the defendant”
· Jury should “concentrate on…(1) exposure to risk and (2)…whether it was reasonably practicable to avoid it”
· “….when the legislation refers to risk it is not contemplating risks that are trivial or fanciful. It is not its purpose to impose burdens on employers that are wholly unreasonable”
· “Its aim is to spell out the basic duty of the employer to create a safe working environment…… The law does not aim to create an environment that is entirely risk free. It concerns itself with risks that are material”
· “It is directed at situations where there is a material risk to health and safety, which any reasonable person would appreciate and take steps to guard against”
4) What, if anything, is the relevance to these offences of foreseeability of injury or of an accident which has in fact happened?
· “Foreseeability of risk…is indeed relevant to the question whether a risk to safety exists”
· “not incumbent on the Crown to prove that the accident which occurred was foreseeable”
Ref: Tangerine Confectionery Ltd and Veolia ES (UK) lTD Appellants – and – The Queen
SafetyInsights.org 