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UNDERSTANDING YOUR
RESPONSIBILITIES

MODULE

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LEARNING OUTCOMES

On completion of this module, you should

be able to:
xplain the meaning of the term reasonably
Eforeseeable
and outline the three tests for
reasonable foreseeability.

how the criminal legal system works and

Outline
identify some of its key characteristics.
how the civil legal system works and identify
Outline
some of its key characteristics.
the part that Approved Codes of Practice
Oandutline
Guidance play in the interpretation of legal

dentify the enforcement notices available to an

Ienforcement
officer.
utline the key elements of a health and safety
Omanagement
system.

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standards.

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Contents
ASSESSING REASONABLY FORESEEABLE RISKS
Meaning of the Term Reasonably Foreseeable
Revision Questions

4-3
4-3
4-4
4-5
4-5
4-8

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HOW THE LAW WORKS

Criminal and Civil Law
Revision Questions
HEALTH AND SAFETY MANAGEMENT SYSTEMS
Plan
Do
Check
Act
Revision Question

4-9
4-10
4-10
4-10
4-11
4-11

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SUMMARY 4-12

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Assessing Reasonably Foreseeable Risks

KEY INFORMATION

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You are expected to be able to identify and manage reasonably foreseeable health and safety risks at work.
There are three tests that can be used to determine whether a risk is reasonably foreseeable - common
knowledge, industry knowledge and expert knowledge.
In most workplace situations you are expected to identify and manage risks that require common knowledge and
industry knowledge.
If you are an expert then you are also expected to identify and manage risks that require expert knowledge.

A company or organisation is not expected to manage

risks that could not have been identified or understood
before the event. However, it is expected to identify and
correctly manage the reasonably foreseeable risks created
by its work activities.

For example, the law would punish an employer who put

an untrained and unqualified worker at the controls of a
high risk piece of machinery, such as a train. This is because
any reasonable person would recognise that as a risk.
However, the law might not punish an employer following
the unpredictable failure of a piece of machinery which
was being used correctly and for its intended purpose;
particularly if that fault was very rare or previously unheard
of in the industry in question.

In the first part of this module we will examine the idea

of reasonable foreseeability and identify the tests used to
define it.

MEANING OF THE TERM REASONABLY

FORESEEABLE

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There have been many occasions when work activities have

exposed people to risks that were unknown at the time. As
knowledge and understanding have increased, these risks
have come to be understood. Today we would describe the
same risks as being reasonably foreseeable, but it would
be unfair to look back in time and retrospectively apply this
term.

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For example, asbestos is known to be a cancer-causing

mineral that is harmful if inhaled as a dust - the serious
ill-health effects have been understood for decades.
So, exposing a worker to asbestos dust today might be
described as unacceptable because the risks are reasonably
foreseeable. However, asbestos was not recognised as a
harmful substance in the 1940s and 50s. Consequently
the law would not have expected an employer to manage
those risks they were not considered reasonably
foreseeable.

There are three tests that are helpful in determining

whether a risk is reasonably foreseeable:
1. Common knowledge if any reasonable person
would identify the risk associated with the work then it
is reasonably foreseeable, e.g. every reasonable person
would recognise the risk associated with working on
the sloping roof of a tall building.
2. Industry knowledge if a particular risk is well-known
and understood in your industry then it is reasonably
foreseeable. For example, putting a worker into an
unsupported deep trench dug into the ground is
commonly recognised as a risk in the construction
industry. The risk might not be recognised by a person
who does not work in construction, but it is still
considered reasonably foreseeable because workers
and employers are expected to have a certain degree of
industry knowledge.

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In the same way it would be quite reasonable for the law

to punish an employer who exposed his workers to a risk
that any reasonable person would identify and recognise
as unacceptable. But that might not be the case where the
risk was of a highly technical nature because it could then
be described as beyond the knowledge and understanding
of the employer (even if they were highly skilled and
competent in their particular type of work).

Essentially, health and safety law requires you and your

employer to manage reasonably foreseeable risks. In most
cases these are the risks that would be recognised by a
competent person working in your particular field. In a few
cases these are also the risks that would only be recognised
by a competent technical expert.

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So you can see that, in most cases, you are expected to

identify and manage reasonably foreseeable risks, i.e. those
that would be recognised by a reasonable person and those
that would be recognised by competent people working
in your industry. In these cases, tests 1 and 2 would apply.
You will rarely be expected to identify and manage risks
that would only be recognised by experts - unless you are
an expert! In which case, test 3 would also apply.

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In the next part of this module we will look at the general

legal framework that applies to health and safety.

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3. Expert knowledge if a risk is outside of the

knowledge of most of the competent people working
in a particular industry, then that risk might be
described as not reasonably foreseeable. Only experts
are expected to recognise such risks. For example, if a
chemical is not classified as hazardous to health and
is not generally recognised as harmful in a particular
industry, then exposing a worker to health risks from
such a chemical could be described as not reasonably
foreseeable, even though there might be some research
chemists who would disagree if asked for their expert
opinion.

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Assessing Reasonably Foreseeable Risks

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REVISION QUESTIONS
1. What does the term reasonably foreseeable risk
mean?
2. What are the three tests that can be applied
to determine whether a risk is reasonably
foreseeable?
(Suggested Answers are at the end.)

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How the Law Works

KEY INFORMATION

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The criminal legal system is concerned with the punishment of organisations and individuals who break their
obligations under statute health and safety law.
Criminal prosecutions are carried out by the state through the criminal courts, with successful conviction leading
to a fine (and/or imprisonment for an individual).
The civil legal system is concerned with providing compensation for the victims of accidents who were not to
blame for their own injuries or ill health.
Civil proceedings are carried out by the injured victim through the civil courts, with success leading to a
compensation payment from the employer to the worker.
To win compensation the injured person has to prove that their employer has been negligent.
There are three proofs or tests for negligence - duty of care owed, duty of care breached, loss as a direct result of
the breach.
Contributory negligence can be used to apportion some of the blame to the injured person themselves and so
reduce the amount of compensation that they might win.
Under the principle of vicarious liability an employer can be held vicariously liable for the negligent acts and
omissions of his employees.
Legal standards for health and safety are established by statute law, principally the Health and Safety at Work,
etc. Act 1974 (HSWA) and Regulations made under the Act.
The UK Health and Safety Executive (HSE) publish Approved Codes of Practice (ACoP) and Guidance on
regulations to help employers understand their legal duties.
Enforcement officers can issue two different types of enforcement notice when they see poor standards of health
and safety in workplaces - improvement notices that require the employer to make an improvement to a deadline
and prohibition notices that require the employer to stop a particular high-risk activity.
Two main types of law create a framework for the
regulation of health and safety - criminal and civil law.

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CRIMINAL AND CIVIL LAW

Before examining each type of law it is worth outlining

some general principles and characteristics of the legal
framework.
The way that both types of law work is best illustrated
using an example.

SA

Imagine a scenario where a worker is run over by a forklift

truck at work and suffers multiple broken bones.
The criminal law implications might be:

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The accident might be investigated by a Health and

Safety Executive (HSE) Inspector. The HSE are an
enforcing authority acting on behalf of the state. In
some workplaces health and safety law is enforced by
the Local Authority Environmental Health Officers
instead.
The inspector might decide to prosecute the company
involved, for a breach of the Health and Safety at
Work, etc. Act 1974 or a breach of Regulations made
under the Act. (Acts and Regulations are types of
statute law that have been passed by Parliament.)

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To win the case the prosecution would have to show

that the accused were guilty of the offence beyond
reasonable doubt (i.e. there could be no doubt in the
mind of a reasonable person that the accused is
guilty).
If the organisation were found guilty of an offence they
would be fined. The fine cannot be reclaimed from an
insurance company. This is the punishment for breaking
the law. If an individual were found guilty of the offence
then they would be fined and/or imprisoned.
The intention of the criminal legal system is to punish
those who break the law. However, the criminal legal
system does not necessarily help the injured worker.
If the injured worker in this scenario wanted financial
compensation for the injury, then they would have to turn
to the civil legal system.
The civil law implications might be:
The injured employee might sue their employer for
compensation.
To do this they would instruct a solicitor to act on
their behalf. The letter of claim to the employer would
have to be sent within three years of the date of the
accident.

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Civil Law

Legal action is brought by

the state.

Legal action is brought by

the individual.

The intention is
punishment.

The intention is
compensation.

Legal proceedings are

normally started within 6
months of the offence
coming to light.

Legal proceedings have to

start within 3 years of the
date of the injury.

Insurance is not available

to pay the fine.

Insurance is available to
pay the compensation.

Statute law is used as the

source of law.

Common and statute law

are used as the sources of
law.

The burden of proof

normally required is guilt
beyond reasonable
doubt.

The burden of proof

required is on balance of
probabilities.

If a person is injured or suffers some other form of loss as a

result of someone elses negligence then they can use the
civil legal system to claim compensation using the principle
of negligence.
To demonstrate negligence the claimant must show that:
a duty of care was owed to them by the defendant (the
person or organisation that they are suing);
the duty of care was breached;
they suffered an injury or loss as a direct result of the
breach of duty of care.
These are often referred to as the three proofs or tests
for negligence. The claimant must prove their case on a
balance of probabilities.
Lets examine each of these ideas in a little more detail:

The duty of care

The concept of a duty of care stems from case law.
Essentially this is the idea that you owe a duty of care
to the people who might be directly affected by your
acts and omissions (according to what is reasonably
foreseeable). For example, an employer owes his
employees a duty of care when they are carrying out
his work.

Breach of duty
Did the defendant act in a way that a reasonable person
might be expected to act in the circumstances? Or did
they omit to do something that a reasonable person
might be expected to do in the circumstances? For
example, a reasonable employer would cordon off a
damaged stairwell and prevent its use; an unreasonable
employer would leave it open and so breach the duty
of care they have to their employees.

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There are, of course, many complications and technicalities

that are not reflected in the scenario above. However, the
above scenario and characteristics are useful as a general
framework.

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Negligence can be simply defined as a failure to take

reasonable care when a duty of care exists.

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Criminal Law

Negligence

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In court the employees legal team could use both

common law and perhaps statute law to support their
case. Common law is the law of the land that has been
created by judges through the precedents that they
set. This is different to statute law that is written in the
form of Acts and Regulations passed by Parliament.
The employee would need to show that their employer
was negligent and is therefore liable for their injuries
on balance of probabilities (i.e. it is more probable
than not that the employer was negligent).
If the employee won the case then the court would
decide how much compensation should be paid. This
compensation is paid from the employers liability
insurance policy.
The table below summarises the two types of law and
shows some of the significant differences between the two.

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How the Law Works

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Injury as a direct result

The injury or loss must have arisen directly from the
breach of duty of care. There must be a straightforward
causal link from one to the other. For example, failure
to cordon off the damaged stairwell (the breach of
duty of care) leads to the collapse of the stairwell
which, in turn, leads to an employee being injured.
Often the amount of compensation awarded to the
injured worker is reduced as a result of contributory
negligence. Contributory negligence is where a part of the
blame for the injury is attributed to the worker. If they are
partly to blame for their injury then they will lose some
of their compensation payment. The proportion of their
compensation payment that they lose will depend on how
much of the blame they share for their own injury or ill
health.

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