1. Fisher Scoggins Waters LLP Wealth and Safety A guide for fleet managers by Mark Scoggins NAPFM Conference 41 Telford 3 June 2014 Fisher Scoggins Waters LLP Hamilton House One Temple Avenue London EC4Y 0HA Tel: +44 (0)20 7489 2035 Mobile: +44 (0)77 1108 6177 Web: www.fisherscogginswaters.com Email: scoggins@fsw-law.co.uk © 2014 Mark Scoggins

2. Fisher Scoggins Waters LLP Aims and objectives  H&S duties in fleet management  The relevance of financial cost to compliance  Law and practice of ALARP  HSE’s published guidance  Risk assessment as the essential defence  Some pointers to more detailed guidance  Teamwork: a tripartite  Records and proof

3. Fisher Scoggins Waters LLP The Great Recession is over

4. Fisher Scoggins Waters LLP But the cuts continue 20% by 2015 £2bn across the 43 E&W forces £1.6bn off payroll £0.3bn off other spends including yours

5. Fisher Scoggins Waters LLP “It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.” Health & Safety at Work etc Act 1974 Section 2 “It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.” Health & Safety at Work etc Act 1974 Section 3 Legal obligations The overarching and primary duties

6. Fisher Scoggins Waters LLP Legal obligations – Defence The reverse burden of proof “In any proceedings for an offence under any of the relevant statutory provisions consisting of a failure to comply with a duty or requirement to do something so far as is … reasonably practicable … it shall be for the accused to prove … that it was not reasonably practicable to do more than was in fact done to satisfy the duty or requirement.” Health & Safety at Work etc Act 1974 Section 40

7. Fisher Scoggins Waters LLP Expense as a defence: the traditional test “Reasonably practicable … is a narrower term than ‘physically possible’ and implies that a computation must be made in which the quantum of risk is placed in one scale and the sacrifice, whether in money, time or trouble, involved in the measures necessary to avert the risk is placed in the other; and that if it be shown that there is a gross disproportion between them, the risk being insignificant in relation to the sacrifice, the person upon whom the duty is laid discharges the burden of proving that compliance was not reasonably practicable.” Lord Atkin Coltness Iron Co. v Sharp [1938] House of Lords (emphasis added)

8. Fisher Scoggins Waters LLP A lowering of the bar? “A further aspect of [the Court of Appeal’s] judgment is the suggestion that ‘there must be at least a substantial disproportion’ before the desirability of taking precautions can be outweighed by other considerations. This theme was developed … on the basis of dicta in two cases prior to Marshall v Gotham [1954]. But it represents, in my view, an unjustified gloss on statutory wording which requires the employer simply to show that he did all that was reasonably practicable.” Lord Mance Baker v Quantum Clothing UK Supreme Court [2011] UKSC 17 §84

9. Fisher Scoggins Waters LLP Words of comfort from the HSE “ALARP does not represent zero risk. We have to expect the risk arising from a hazard to be realised sometimes, and so for harm to occur, even though the risk is ALARP. This is an uncomfortable thought for many people, but it is inescapable … we have to accept that risk from an activity can never be entirely eliminated unless the activity is stopped.” HSE guidance ALARP at a glance (current)

10. Fisher Scoggins Waters LLP  Informed risk assessment: with statistics if available  Cost Benefit Analysis (CBA) with justified costings  Identification of “good practice” across the police service  Finite resources: the competing demands and risks  Regular review and reassessment  Professional judgments: not to be second-guessed  Involvement of all stakeholders  Fleet management  Driving instructors  Operational commanders  Drivers  Records and the historical picture The keys to defensible decisions

11. Fisher Scoggins Waters LLP Formal Value to Prevent Fatality/Injury (VPF/VPI) figures Adopted also by the HSE for conventional risks Over the expected service life of a spend [2014 values] To avoid a fatality £2,000,000 To avoid a serious injury £225,000 To avoid a slight injury £17,300 Sources: Deloitte – ‘Review of the Highways Agency Value of Life Estimates’, April 2009, HSE – ‘Reducing Risks, Protecting People’, 2001 edition (current) NERA Economic Consulting [DfT] – ‘Updating the VPF and VPIs’, March 2011 The costs of road death and injury How the Highways Agency evaluates

12. Fisher Scoggins Waters LLP Records & Proof

13. Fisher Scoggins Waters LLP A masterpiece of brevity, focus and clarity...

14. Fisher Scoggins Waters LLP The End … and may the blame be found to lie with someone else … (provided the evidence proves it)‏