Is my risk assessment suitable and sufficient?

GUIDANCE 

Risk assessment articles:

1. A short guide to hazards in water
2. How to implement risk assessments
3. When do I need to review a risk assessment

Ordinary standard expected

Health and safety legislation will often use language such as "reasonable care", "so far as is reasonably practicable", "suitable and sufficient", or "breach of duty". The court or jury, with little knowledge of health and safety practices which are swimming pools, need assistance in identifying a "benchmark" from which they can assess whether a defendant fell below any of these terms.

Given its legal name, that benchmark is the standard of care, the standard expected of a person in the defendant's position at the relevant time. It is assessed objectively by referencing what an ordinary person in the defendant's position knew or should have known (knowledge) or what they should or should not have done (conduct/skill). 

Relevant time

The relevant time will often be the date of the accident. The ordinary standard is assessed by reference to what was objectively known at the relevant time, not what the defendant subjectively knew. Account may be taken of how difficult it would have been for the defendant to discover what was objectively known at the relevant time. However, it is rarely enough to absolve a defendant of liability.

In some cases, such as with fixtures and fittings like waterslides, the relevant time may be when those fixtures were installed. In those circumstances, the expected ordinary standard would be that which existed when the waterslide was installed. Where a defendant undertook a substantial modification or renovation to a fixture such as a waterslide, the relevant standard may shift to the date the renovation was completed. 

Role of Approved Codes of Practice (ACOPs) 

With the approval of the Secretary of the State, the HSE has the power to approve and issue Approved Codes of Practice (ACOPs) to provide practical guidance about sections 2-7 HSWA 1974 or the regulations thereunder. Failure to comply with a provision of an ACOP is not an offence.

Where charged with an offence, failure to comply with an ACOP requires the defendant to prove it was more likely than not that they nevertheless complied with their legal duty by the alternative means they adopted. 

Role of guidance

Guidance is designed to help employers interpret how their health and safety duties apply within their particular work context. There is no legal definition of guidance, but it frequently includes industry publications, national and international standards, policy statements from professional bodies, publications from public bodies, and academic research. Health and safety legislation does not require employers or employees charged with an offence to demonstrate that they met the guidance or any provisions.

For various H&S offences, the court and/or jury will require assistance (by means of the parties submitting evidence) to help it understand the ordinary standard expected of a person in the defendant's position to enable it to decide as to whether it breached/fell below that standard. It is sometimes necessary for the court/jury to assess how far below that standard the defendant fell.

Guidance is put before the court by both parties adducing witness testimony, witness statements, or expert opinion, and it plays a vital role in creating the objective benchmark against which the defendant's conduct can be assessed.

Role of expert opinion

Swimming pool health and safety is a specialized area of H&S practice not studied or covered by most professionals in the field. Expert opinion assists the Court/jury in understanding issues outside its expertise and relevant to the issues it must decide in the case. It is not for an expert to determine or give an opinion on guilt or innocence.

Despite the word opinion, the value of an expert to the court, the jury, or the parties is the structured road map through the relevant technical considerations and its application to the evidence and issues on which the court/jury must decide. There is greater value in the reasoning than the destination. As a result, expert opinion may be sought much earlier, at the outset of the investigation, to help advise an employer following an incident, to assist the police/HSE decide as to whether to charge a suspect or to assist a claimant on whether to issue a personal injury claim.

Regardless of who instructs an expert witness, they owe an overriding duty to bring all matters relevant to their opinion to the court's attention, including those which may be unfavourable to the instructing party. 

Citation: Jacklin, D. 2022. Is my risk assessment suitable and sufficient? Water Incident Research Hub, 6 March.