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Reasonably Forseeable?

Two prosecutions were reported in early November 2018. The Court Cases and associated reporting enable us to be aware of the failings of others and to learn from them. The problem is that the two cases in question were not concerning new and unexpected situations, but were about the sort of things that crop up every day, and the guilty verdicts reflect the failure to foresee the obvious.

The first is the case of WH Smith who were fined £337,500, and the incident that occurred in their Taunton branch in which a customer fell through an open trapdoor in the shop. The trapdoor was in the sales area with no signage or edge protection, and the customer fell almost 3m into a cellar, severely injuring her heel. Without dissecting this case minutely, something that cannot be done without the full transcript of the trial, we might still agree with the Judge who described the accident as “ foreseeable”.

We might also wonder about the circumstances under which such an entirely foreseeable accident occurred. Accidents of this sort, i.e. person falls through a trap door, have probably happened thousands of times since people had floors with trap doors in them, (sometimes on-stage in pantomime!) and very little imagination is required to “foresee” them. Challenged to come up with some basic measures to prevent such occurrences, we could all provide some ideas: training, signage, discipline, supervision, risk assessment, barriers, time restriction, all come readily to mind, with most of these at low or negligible cost. WH Smith is a large business which made a profit of £116 million in 2017, and has resources and staff with titles such as ‘manager’, and ‘health and safety officer’, and in fact, a good accident record. However, in sentencing, the Judge said: “There was a lapse in focus of the corporate mind.” And yet, in 2014, such incidents could still happen, as if the persons concerned were starting out on Day One of the world, naïve and innocent, knowing nothing. This was a very expensive lack of focus for all concerned, not least the injured customer.

The second incident, which also took place in 2014, was one in which a 15 year-old boy died and another was seriously injured, when they were struck by a mini-bus on school premises, and which has resulted in the Local Authority being fined £300,000.

This tragic accident resulted from there being an insufficiently large layby to accommodate all the school buses and facilitate safe boarding by pupils. The prosecutor said there had been a "complete failure in health and safety communication which resulted in a missed opportunity". Reasonably practicable action to prevent the accident had not been taken, the inadequacy of the bus layby having been pointed out at the design stage for the new school, and again three years later when problems were apparent, and there had been a number of ‘near misses’, one bus driver describing the situation at the end of the school day as a “free for all”.

Without having every detail before us it is again hard to form an accurate view, though accidents in which pedestrians are killed or injured by moving vehicles will have happened ever since the first use of wheeled vehicles. This fatal accident was foreseeable; its potential was seemingly apparent throughout the six years which had passed since the school opened.

Considering the two cases together we might wonder how such uncontrolled risks can be tolerated or ignored in the 21st Century and we are left to draw our own conclusions about the competence of managers, designers and advisors, and the quality of accountability and communication in large organisations. The question is: how would our own measure up.

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