1st September 2016


 Issue No.  2016/19



Recent prosecutions – can any lessons be learnt?

You may have seen the publicity surrounding three recently reported cases with very tragic outcomes.  With the greatest of respect to those affected it is important to look for any lessons for employers.  

An optometrist missed serious abnormalities in the eyes of a young primary school patient during a routine examination in 2012.  The young patient subsequently died from hydrocephalus.  This would have been picked up and been treated had the optometrist performed the examination thoroughly.

The outcome
The optometrist was found guilty of manslaughter by gross negligence and given a suspended jail term.  The judge ordered the optometrist to complete 200 hours of unpaid work and gave her a 24 month supervision order.

Lessons to be learnt
The above case is a tragic reminder that employees must perform their duties diligently.  Consequently, employers should take all steps necessary to ensure that workers are competent and trained in how to do their job and use equipment correctly. Employers have a duty not to cause, or fail to prevent, physical or psychological injury, and must fulfil their responsibilities with regard to personal injury and negligence claims.

Two care workers assisted a resident take a shower using a commode chair, but the resident injured himself as he fell forward from the shower chair whilst loosely strapped in. It was alleged safety belts were not used or adjusted correctly and the employer had failed to ensure staff knew how to fit the straps safely and had not carried out effective audits of equipment.  The 62 year old resident who had Down's Syndrome, epilepsy, dementia and a severe learning disability, died when he fell breaking his neck in April 2015.

The outcome
The prosecution was brought by the Care Quality Commission.  The care home pleaded guilty to ‘failing to provide safe care and treatment, resulting in avoidable harm’ and was fined £190,000.  

Lessons to be learnt
This sad case reminds us that all employers not just those within the care sector, must ensure that employees are trained, where  appropriate in manual handling / handling and moving residents; and on how to use equipment, as well as ensuring equipment is regularly checked, and replaced or repaired as appropriate. 

A nightclub ejected a drunk female student from their premises after she collapsed; she was subsequently lured into a van and driven to an industrial estate, where she was raped and sexually assaulted. 

The outcome
The perpetrators of the rape were found guilty.  However, the Judge criticised the nightclub accusing it of “abandoning” a young women on the street. The Court had heard how the nightclub had continued to serve drinks to students who have had far more than enough to drink but, as the Judge said, “they fail to take responsibility for the students, they removed (her) after she collapsed inside”. 

Lessons to be learnt
The licensing objective of ‘public safety’ requires licence holders to ensure the safety of those using their premises as part of the duties under the Licensing Act 2003. This includes ensuring the safety of customers when leaving the premises and ensuring the presence of trained first aiders (and giving such aid where required).  

Whilst the hospitality industry may find it difficult to manage intoxicated individuals who have left their premises, employers may have similar obligations to ensure employees get home safely, following a works ‘do’, for example, or if an employee is taken ill at work.   An employer will need to make an assessment to determine if it is safe for the employee to drive home or to go home on their own/by public transport/taxi or depending upon the circumstances it might be to ask the employee if a friend or relative could come and pick them up, or explore if a colleague could arrange to take them. 

What these three cases highlight is the need for employers to be mindful of their duty of care to employees, client/customers/patients and/or visitors.  Documented risk assessments, training records, method statements, combined with good management should hopefully minimise the risk of such awful incidents occurring which in turn reduces the risk of prosecution and/or other legal action.





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Making sense of it all


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