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David Hetherington  

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Farming Accidents – Criminal or Victim?

 

Article date:  28/09/2015

While farming accidents remain statistically infrequent, by their very nature they tend to be serious, life changing or tragic.
And with reports of two recent deaths - an Aberdeenshire pensioner killed in an accident involving a combine harvester and a Lancashire grandfather trampled by cattle - the HSE has already been called in to investigate.

The Health & Safety Executive is the farming industry's national regulator and says Britain is entering the season when the risk of farming accidents is at its highest.
Although it is recognised that the HSE performs a valuable function investigating accidents, determining their cause and publicising the precautions that might have prevented them, many farmers are left bewildered at the HSE's less than sympathetic methods.

David Hetherington, a legal expert with Higgs & Sons specialising in government regulatory enforcement including HSE and DEFRA, said: "Controversially, the HSE frequently takes farmers to court and prosecutes them for criminal offences.

"Under the Health & Safety at Work Act 1974, the farmer is guilty, irrespective of a lack of intention or negligence, unless all reasonable practicable measures have been taken. Notwithstanding the farmer's lack of intention, the HSE will normally conclude its address to the court by saying that the accident was 'entirely avoidable'."

David points out that, although a farmer might ask why it is in the public interest to prosecute him, HSE Inspectors are exasperated when they see the same type of accidents occurring again and again.

He said: "The HSE believes that it is doing right, stating that the risk of a fatal accident in the farming industry is 9 in 100,000 over a period of one year (or 0.009%) - three 3 times greater than the risk of a fatal accident in the construction industry.

"However, even if you calculate over a period of 50 years that a farmer may work in the industry, the risk of a fatal accident is still only 9 in 2,000 over the period of a career lifetime (or 0.45%).

"Of course, statistics are all very well, provided that you are not one of the victims. Last year 33 farmers (or their staff, family or visitors) suffered a fatal accident, which is likely to have a traumatic effect on both the victim's family and the farmer."

The problem for farmers whose farm suffers an accident, adds David, is that they are at the mercy of an HSE inspector and should never presume that they will be treated as the 'victim'.

"The farmer who has suffered both an accident, and an HSE investigation and prosecution, will consider that the excessive time spent by the HSE investigating each accident and taking the farmer to court, would have been better spent in using the accident as a means to educate and train the farmer of the consequences of not making risk assessments and implementing practical safety measures.

"Instead, the farmer will be investigated and treated as a criminal. The farmer's staff, and all relevant persons, will be compulsorily interviewed, normally by two officers. The investigation will be hanging over the farmer for many months and sometimes for more than a year. Furthermore, the HSE will often make a preliminary determination of guilt and issues invoices for the time spent at the hourly rate of £124."

In conclusion, David says: "The favourite HSE phrase, 'entirely avoidable' accident, whilst technically accurate with the HSE's benefit of hindsight, wrongly suggests a total lack of care by the farmer, and has become a misleading and headline-seeking cliché.

"If you are a farmer and want independent assistance, you will not get it from the HSE after an accident has happened. You are best advised to seek prior legal assistance to implement measures to avoid risks. If, however, an accident has already occurred, then you should seek independent legal assistance as a priority to guide you through the criminal procedures, which the HSE Inspector will employ against you."

Currently celebrating its 140th year, Higgs & Sons is an award-winning Midlands law firm, employing over 200 people. Recognised across the region and nationally, Higgs & Sons is proud of its heritage and reputation for consistently delivering exceptional standards of service.

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