Over the years I have found myself becoming more and more liberal in my views of Health and Safety, and less and less tolerant towards individuals who abuse the law which is purely there to protect them. Individuals have to ultimately take responsibility for themselves and must therefore be given the opportunity to do that. As long as an organisation has done all that is reasonably practicable and reasonably foreseeable to protect their workers under the Health and Safety at Work etc. Act 1974; and their visitors under the Occupiers Liabilities Acts of 1957 and 1984 then that is sufficient.
The bad health and safety advice that is commonly given, and the increase in the numbers of, no win, no fee solicitors, has meant that in order to protect themselves from claims organisations and public authorities have stopped doing all that is reasonably practicable and started doing all that is practicable, whether it be reasonable or not.
A suitable and sufficient risk assessment is adequate to reduce the risk of a particular activity or task to the lowest possible, if followed. If an individual is then harmed whilst carrying out the activity or task it will not be the fault of the assessment, or also therefore the law, but will be the fault of the individual who has deliberately violated it. They have chosen to do this of their own free will and organisations cannot be held responsible for the wilful acts of their employees.
In Common Law this view of mine is called Volenti non fit Injura (a defence in tort law). It means that if someone knowingly and willingly puts themselves in harm’s way they are not able to bring a claim of negligence against another person if they are harmed as long as that harm was foreseeable and one that a reasonable person would expect to suffer.
Recently and with interest I was listening to Radio 4 on the way to work and I tuned in to hear a gentleman eloquently speaking about a young man who had dived into a shallow lake at a well-known beauty spot and broken his neck, thus rendering him tetraplegic. The local authority had put up “Dangerous Water. No swimming” signs, but these were routinely ignored by the public, and so the authority was sued for negligence by the young man. His case was that because the authority knew that the signs were generally ignored they should have taken further steps to close off the lake altogether. The Court of Appeal agreed, but when the case reached the House of Lords it was noted by the judge that there was a price to be paid for protecting this young man from his own stupidity. The price would have been the loss of freedom to all the other people who took pleasure in visiting the lake and who were sensible enough to do it safely. The House of Lords had identified a wider issue, and this was that every time a public authority is blamed for failing to prevent harm, it will usually respond by restricting the freedom of the public in order to deprive them of the opportunity to harm themselves.
The above summary agrees with my view of health and safety very adequately and I have since learnt that the programme was the first of the Reith Lectures to be given in 2019, and the speaker was Lord Jonathan Sumption who was, until recently, a member of the Supreme Court. The title of the Reith Lecture was “Law’s Expanding Empire”. The general message of the first lecture was, ironically, that although the range of human rights has vastly expanded recently, the range of choice individuals have in being able to claim these rights has significantly reduced and this can only have been born of fear. Today citizens of the United Kingdom feel that they are entitled to be kept safe without putting any responsibility on themselves to make sure that they are.
The case Lord Sumption was remembering was Tomlinson v Congleton Borough Council (2003). The case started off in the High Court and then proceeded to the Court of Appeal. The Court of Appeal ruled in favour of the young man (claimant), but finally this decision was overruled by the House of Lords. The case related to the Occupiers Liability Act 1984 which deals with unlawful visitors (trespassers), and the claimant’s view was that he was owed a duty of care under this act by the Council (defendant). It was finally decided by the House of Lords that the lake itself was not the danger, but that the danger was the claimant’s own disregard for the signs clearly warning of the danger. The Council was discovered not to owe a duty of care to the defendant as swimming was not permitted in the lake at any cost and they had done everything reasonably practicable to ensure that individuals did not swim in the lake. They had put the “No swimming” signs up, they had introduced patrols of that area and they had started to remove all the attractive features of the lake to discourage visitors from going too near it.
This ruling by the House of Lords was considered a landmark ruling as it was one of the first cases to state that individuals must take responsibility for their own actions. One of the Law Lords even went on to state that “an unrestrained culture of blame and compensation has many evil consequences and one is certainly the interference with the liberty of the citizen”. (Lord Hobhouse, House of Lords, 2003)
As a result of listening to Lord Sumption’s lecture, and as a result of researching the above case in more detail, I have come to the surprising and uplifting conclusion that what I thought were my unique and liberal views on the health and safety culture in this country are also shared by the highest court in the land.