FireNet Community
FIRE SERVICE AND GENERAL FIRE SAFETY TOPICS => General Interest => Topic started by: Tom Sutton on December 20, 2010, 11:09:15 PM
-
See attached prosecution of fire alarm engineer fined under RRO(FS)O from JayJay
http://www.bafsa.org.uk/snews_full.php?id=00000972
I suspect he has been prosecuted under Art 5(3) and does this mean you FR Assessors are now in the line of fire?
-
Yes Tom it does. Personally I am wholly in favour of raising standards and support any prosecution of rogue traders if persons have been placed at risk as a result of their shoddy work.
The definition of an offence is very clear in the Fire Safety Order. We do not yet have sufficient information from the case in point to balance the four defects found on that fire alarm panel with the definition of an offence and the contribution they made in respect of this tragic fire, or whether any other persons are facing legal action.
Butin general terms it appears to me that some Fire Authorities have been involved in some kind of race to be the first to bring a successful prosecution of this nature.
Is that a fair comment?
-
Tradesmen have always been subject to prosecution for shoddy workmanship, and a number, more often gas fitters or electricians, have received custodial sentences when it has been demonstrated that their acts or omissions have directly resulted in a death or severe injury. Personally I don't see any reason why fire risk assessors should be any different. However, there are a couple of fundamental differences between the working practices of tradesmen and those of fire risk assessors which would make it difficult to directly link a death or injury to an act or omission of an assessor.
For a start, there are prescriptive tests and checks that tradesmen are required to carry out on any installation that they work on. And, trade bodies and BS documents produce model report forms to ensure that all tests and checks are recorded in a standard fashion and that any parts of an installation that are not checked or tested are clearly highlighted to the customer. Therefore proving negligence is a relatively simple process.
The process of fire risk assessment on the other hand has been promoted pretty much as a DIY task. Available guidance documents don't provide any consistency of approach or presentation, there is no clear definition of what constitutes a suitable and sufficient risk assessment, and assessors can rarely obtain the detailed historic information regarding a building that is necessary in order to make a full and proper assessment. (Ask your clients for a copy of their buildings fire strategy document, or any BCO approvals for building alterations or change of use and watch as they enter what can only be described as a trance like state)
So whilst I think that fire risk assessors should be liable, in practice, and until we move towards becoming a proper profession with clear definitions established in the courts, I suspect that it will be difficult to successfully prosecute fire risk assessors.
-
I live in rented accomodation and I was sent a letter saying Joe Bloggs fire co. will be coming to inspect my fire alarm.
When I came home from work, me being the geek that I am, had a look at the log book and the panel.
The guy had left it turned off for some reason, clever. In my block there are 5 flats and I can pretty much guarantee that it would not of been noticed until the next inspection if I hadn't checked.
I rang the company to ask why there had been a mistake. They assured me there was no mistake and their competent engineers would not of left it off and I was wrong as fire alarms are complicated things. He said BS5839 and expected me to say oh ok then.
I didn't, I did however let him go on and asked him what it was. I stopped him after 5 mins of stuttering and told him what I did for a living.
Needless to say the stuttering continued.
-
there is no clear definition of what constitutes a suitable and sufficient risk assessment, and assessors can rarely obtain the detailed historic information regarding a building that is necessary in order to make a full and proper assessment.
So whilst I think that fire risk assessors should be liable, in practice, and until we move towards becoming a proper profession with clear definitions established in the courts, I suspect that it will be difficult to successfully prosecute fire risk assessors.
But RP's are being prosecuted on a regular basis for not having a suitable and sufficient risk assessment and paying the price. What happens if their defence is "the FRA was done by a competent risk assessor?
-
Define competancy in terms of the RRO. Oh I know what it says, but what have the governement and documents such as PAS 97 and the CLG guides said and implied?
-
The RP has a defence of due dilligence. If the RP has appointed a professional and has taken reasonable steps to ensure the professional is competent then they will have a strong defence.
Reasonable steps will depend on who the RP is. If it's a small business with limited resources, then checking out somebody's literature may be enough. If it's a big firm like Sainsbury etc then there is an expectation that they would be a bit more selective (the same principle applies under the CDM regs when appointing contractors for building work).
If the RP has taken reasonable steps to appoint a pro, and has acted on their advice, and this advice turns out to be duff, then the pro is going to be in the firing line (which is fair enough).
-
The RP has a defence of due dilligence. If the RP has appointed a professional and has taken reasonable steps to ensure the professional is competent then they will have a strong defence.
Reasonable steps will depend on who the RP is. If it's a small business with limited resources, then checking out somebody's literature may be enough. If it's a big firm like Sainsbury etc then there is an expectation that they would be a bit more selective (the same principle applies under the CDM regs when appointing contractors for building work).
If the RP has taken reasonable steps to appoint a pro, and has acted on their advice, and this advice turns out to be duff, then the pro is going to be in the firing line (which is fair enough).
Totally agree; though originally conceived as a 'DIY' task if an Employer chooses to employ an expert fire risk assessor to help them & they take all reasonable steps to ensure their competence then they would have a strong defence in Law. That's one of the reasons why they might choose to employ an expert. It's my understanding that the enforcing authorities could directly prosecute the risk assessor, if their negigence was proven to have caused an offence under the Order.
-
Just a reminder that the the burden of proof is on the defendant not the prosecution:
Article 34.
Onus of proving limits of what is practicable or reasonably practicable
34. In any proceedings for an offence under this Order consisting of a failure to comply
with a duty or requirement so far as is practicable or so far as is reasonably practicable, it is
for the accused to prove that it was not practicable or reasonably practicable to do more than
was in fact done to satisfy the duty or requirement.
-
It's my understanding that the enforcing authorities could directly prosecute the risk assessor, if their negigence was proven to have caused an offence under the Order.
Quite right. 32(10) -
Where the commission by any person of an offence under this Order, is due to the act or default of some other person, that other person is guilty of the offence, and a person may be charged with and convicted of the offence by virtue of this paragraph whether or not proceedings are taken against the first-mentioned person.
That is secondary in these circumstances to:
32.—(1) It is an offence for any responsible person or any other person mentioned in article 5(3) to—
5(3) (and 5(4))covers:
(3) Any duty imposed by articles 8 to 22 or by regulations made under article 24 on the responsible person in respect of premises shall also be imposed on every person, other than the responsible person referred to in paragraphs (1) and (2), who has, to any extent, control of those premises so far as the requirements relate to matters within his control.
(4) Where a person has, by virtue of any contract or tenancy, an obligation of any extent in relation to—
(a)the maintenance or repair of any premises, including anything in or on premises; or
(b)the safety of any premises,
that person is to be treated, for the purposes of paragraph (3), as being a person who has control of the premises to the extent that his obligation so extends.
It would be very hard to see how a risk assessor or a fire alarm engineer does NOT have an obligation in relation to the safety of the premises.
-
http://www.info4fire.com/news-content/full/fire-alarm-contractor-sentenced-under-fire-safety-order
-
Butin general terms it appears to me that some Fire Authorities have been involved in some kind of race to be the first to bring a successful prosecution of this nature.
Is that a fair comment?
Have come into this a little late
No I don't think thats a fair comment. I think we would all agree that if someone has done something wrong they should be brought to book. And also we should bare in mind that this case highlights a victory for the Responsible Person too.
So no I cant accept there has been a race, Im just pleased that justice has been served, for all the right reasons, and not just so a certain fire authority can gain kudos from it.
-
The reporting of this case has focussed so far only on the accused but I have seen a report elsewhere that the accused was the employer rather than the engineer who carried out the work. I would be interested in knowing if this is true because if so it would bring new perspective to the case.
We are of course aware that every employer has vicarious liability for the actions or omissions of their staff, but it would be interesting to know why procedings were not also taken against the employees who actually carried out the maintenance.
I have not seen any account in the reporting of this case as to how the defects identified contributed to the tragedy and whether there were any other factors which also contributed to the sad outcome? Was the defective servicing wholly responsible in this case?
Which brings me to another aspect. Four defects were specified in the case. Had that installation and its maintenance been audited under SP203 or LPS1014 what action would the Certifying Body have taken and how serious would each have been viewed under the scheme? I know hindsight is a wonderful thing but we should at least ensure that the accreditation schemes are seeing things in the same way as the courts, for the protection of all those who work under them.
-
Where was that?
All the stuff I've seen implies he did the work himself and sounded like a self employed spark, although a bit of digging suggests that whilst a small trader he may well have a couple of other staff.
As you say it does make a difference if they went for the employer rather than the individual, although the use of 'a person/any person' in the legislation suggests whoever did the servicing should be charged, not the employer.
-
Brian the due dilligence defence is no longer available if the persons you put at risk are employees. Unless of course you have crown immunity in which case you dont need a defence as you cannot be prosecuted. But then again until you became one, I have always thought civil servants are expendable. Now you aappear to be totally indispensable since you are dragged into things that are not within your scope of work by those whose scope of work it is intended to be, for reasons on which one can only speculate. Why am I reminded of an Intel processor. See you tomorrow.
-
The reporting of this case has focussed so far only on the accused but I have seen a report elsewhere that the accused was the employer rather than the engineer who carried out the work. I would be interested in knowing if this is true because if so it would bring new perspective to the case.
We are of course aware that every employer has vicarious liability for the actions or omissions of their staff, but it would be interesting to know why procedings were not also taken against the employees who actually carried out the maintenance.
I have not seen any account in the reporting of this case as to how the defects identified contributed to the tragedy and whether there were any other factors which also contributed to the sad outcome? Was the defective servicing wholly responsible in this case?
Which brings me to another aspect. Four defects were specified in the case. Had that installation and its maintenance been audited under SP203 or LPS1014 what action would the Certifying Body have taken and how serious would each have been viewed under the scheme? I know hindsight is a wonderful thing but we should at least ensure that the accreditation schemes are seeing things in the same way as the courts, for the protection of all those who work under them.
From the fact the accused pleaded guilty, it would appear that he had no defence to the charge. Unless, of course, it was one of those instances where he was forced into pleading guilty to avoid the threat of the 'authorities' making his life hell in various ways for years to come.
Whilst the 'defects' with the system were discovered after a fire involving a fatality, I'd be surprised if the 'defects' speciifcally mentioned caused the fire alarm system to fail in any serious way (although the fuse defect could have serious ramifications depending on what it was protecting) . They seem pretty minor to me, and I guess that even I'd be able to find a non-compliance with BS5839-1 in probably most new systems, and probably examples of poor workmanship/poor maintenance in most older systems. It is so easy to find fault if you want to and especially on a system that is 20 years old.
To accuse the guy of one of the 'defects' i.e The fault warning light on the front face of the panel had been almost covered by paint is pretty pathetic when you consider that it involves the word 'almost' and you consider the fact that this sort of 'defect' is non-technical and should have been discovered by the user on their daily check.
At the end of the day, I suppose it is obvious that a proper level of servicing cannot have been carried out otherwise the 'defects' would have been previously highlighted in writing to the customer, and so the inference therefore is that maybe no testing and inspecting had actually been carried out at all for years. In which case, it is fair and proper that punishment results, especially as it might also act as a wake-up call for anyone who thinks they can get away with charging for a service they don't actually provide.
-
Where was that?
It was stated in the FIA linkdin group. Its effectively a bulletin board just like this so dont take it as gospel truth, it just prompted me to ask the question to see if we can find out.
...the due dilligence defence is no longer available if the persons you put at risk are employees....
Colin I find myself once again grateful to you for making a very important point (much as it grieves me to admit it.)
Your point is equally valid in respect of other threads elsewhere - in particular in respect of discussions on the perceived benefits of third party accreditation of fire risk assessors. I would like to discuss this further and will start a thread for the general discussion of offences and defences under the Regulatory Reform (Fire Safety)Order Q&A heading.
Dr Wiz- in respect of your point:
"Unless, of course, it was one of those instances where he was forced into pleading guilty to avoid the threat of the 'authorities' making his life hell in various ways for years to come."
It seems to me that despite the rights and wrongs, once such a case comes to the attention of the courts the reputation of your business is trashed whether you plead guilty or not?
So it is absolutely vital that the case for prosecution is justified and diligent and the legal representation available to defendants is competent in respect of the Order.
How many solicitors actually have a working knowledge of the Fire Safety Order?
-
How many solicitors actually have a working knowledge of the Fire Safety Order?
All those who employ a decent expert witness who understands the Order and the philosophy behind it.
-
More information on this case is now available.
http://www.info4fire.com/news-content/full/fatal-fire-care-home-manager-fined-for-fire-safety-breach
From the news story it appears that the the alarm had been silenced and left in silent mode without the cause of the alarm being investigated. One of the charges against the engineer was in respect of a defective audible fault warning sounder on the panel. If the system had been left in silence mode this buzzer should have been a prompt to the responsible person (BS5839) that action needed to be taken.
In my view reason for the prosecution of the engineer makes more sense now.
-
Clarification on this is where the internal buzzer acts as a local alarm buzzer and also fault buzzer .
The only thing that there was no fault on the sytem and the main sounders in the field was silenced so you would only have visual indication the system was in alarm .
I reckon this goes back to the general appeasment of persons when you work on the system , who contiually moan how long is that thing going to keep going , and dont get me wrong it gets on my nerves as well.
However the engineer a term I will loosley use should know better.
All you have to do is to ensure the buzzer if not monitored by the panel , and some are , is to ensure a good electrical connection is made ie male to female bullet crimp and bring up the buzzer when you have finished working on the system .
It aint rocket science.
Do your job properly and if the punter dont want to play the game , walk away cos it aint worth it.
-
The additional information raises another interesting question; Who is more to blame for the situation that led to the death of a resident?
a)The engineer who evidently had left the system without a working control panel buzzer, meaning that when the alarm sounders were silenced during a fire condition there was no longer any audible warning of that fire condition from the control panel. (Engineer fined £5,000 + £6,000 costs)
b)The care home manager who evidently silenced a fire alarm warning condition at 6p.m., didn't ensure a thorough search for a fire and left the fire alarm silenced until 7.15 p.m., when the fire was 'discovered' (I would argue the system seems to have found it at 6 p.m!) (care home manager fined £500 + £15 victim surcharge).
As a fire alarm engineer myself, I don't want to be considered as just blindly supporting someone also describing himself as a fire alarm engineer, but it seems that only one of the initially reported 'engineering' faults played any part in the situation that led to the death and that the fire alarm system actually functioned correctly in it's primary purpose (detected a fire and initiated a warning).
-
I agree with you Wiz , and what gets on my goat is all this nonsense he was a formally a retained firefighter , whats that got to do with anything but cloud the issue .
-
I agree with you Wiz , and what gets on my goat is all this nonsense he was a formally a retained firefighter , whats that got to do with anything but cloud the issue.
It is either meant to represent:
a) Being ex fire service he should be an expert, therefore should have known better, or..
b) Being ex Fire Service doesn't make you an expert!
Depends on how you look at it.
-
I agree with you Wiz , and what gets on my goat is all this nonsense he was a formally a retained firefighter , whats that got to do with anything but cloud the issue.
It is either meant to represent:
a) Being ex fire service he should be an expert, therefore should have known better, or..
b) Being ex Fire Service doesn't make you an expert!
Depends on how you look at it.
I would assume it was for impact and to indicate (a) when actually,through experience,it means (b)!!
-
The additional information raises another interesting question; Who is more to blame for the situation that led to the death of a resident?
a)The engineer who evidently had left the system without a working control panel buzzer, meaning that when the alarm sounders were silenced during a fire condition there was no longer any audible warning of that fire condition from the control panel. (Engineer fined £5,000 + £6,000 costs)
b)The care home manager who evidently silenced a fire alarm warning condition at 6p.m., didn't ensure a thorough search for a fire and left the fire alarm silenced until 7.15 p.m., when the fire was 'discovered' (I would argue the system seems to have found it at 6 p.m!) (care home manager fined £500 + £15 victim surcharge).
As a fire alarm engineer myself, I don't want to be considered as just blindly supporting someone also describing himself as a fire alarm engineer, but it seems that only one of the initially reported 'engineering' faults played any part in the situation that led to the death and that the fire alarm system actually functioned correctly in it's primary purpose (detected a fire and initiated a warning).
100% there Wiz - the guy has been scapegoated and thrown forward to be made an example of.
What's the phrase??Oh yes,brown stuff rolls downhill!
-
I agree with you Wiz , and what gets on my goat is all this nonsense he was a formally a retained firefighter , whats that got to do with anything but cloud the issue.
It is either meant to represent:
a) Being ex fire service he should be an expert, therefore should have known better, or..
b) Being ex Fire Service doesn't make you an expert!
Depends on how you look at it.
I would assume it was for impact and to indicate (a) when actually,through experience,it means (b)!!
I would never blame the firemen themselves for this.
The general public look up to them as gods (often with good reason) who are experts on any subject with the word fire in it. Some firemen even start believing it themselves! They are the 'dangerous' ones.
-
Perhaps I've misunderstood the facts in this case but to me the fire alarm engineer has been hit far too hard particularly given the small fine the care manager got in comparison.
Ok I accept the alarm engineer didn't leave the system in correct working order, but as Wiz states from what I understand the alarm activated as it should, but the care manager did not take appropriate action (ie; did not undertake a proper search?)
-
Midland it might be that further action is still to be taken against others - there has been no mention of any pending or considered action against the RP for the care home yet. I think we can expect the fine on the manager to have taken account of all relevant facts and the Judge may have considered mitigating factors - in both cases so far.
-
They were both poor at the job they had to do at the time and one, because he should have known better, was hit harder. Both were found to be at fault though, which is the major point to the exercise. I do not believe either will forget what happened and will both do better next time.
-
Midland it might be that further action is still to be taken against others - there has been no mention of any pending or considered action against the RP for the care home yet. I think we can expect the fine on the manager to have taken account of all relevant facts and the Judge may have considered mitigating factors - in both cases so far.
The inquest into the lady's death has still to be completed so I assume if it is proved that her death was contributed to the fire or the length of time from initial detection to response then additional charges may arise.
-
...her death was contributed to the fire...
Buzzard
Do you mean contributed to, or is this a typo and you meant attributed to? Changes the meaning considerably; just want to be sure what you are saying
-
...her death was contributed to the fire...
Buzzard
Do you mean contributed to, or is this a typo and you meant attributed to? Changes the meaning considerably; just want to be sure what you are saying
Well,the inquest isn't out yet...but I'll hold my hands up to a momentary lapse of correct syntax!
-
As they say it isn't over yet - I wonder if CPS will dare to try a gross negligence manslaughter charge?
An hour and 15 minutes un-actioned after it's been of a size to fire off a smoke head is a significant amount of time.
Their only hope is if the pathologist & coroner agrees the time of death was before or at around the time of the fire alarm first activating in which case the ignoring of the alarm didn't contribute to the death.
-
Quote from: Buzzard905 on April 08, 2011, 02:09:41 PM
Quote from: CivvyFSO on April 08, 2011, 01:40:22 PM
Quote from: Galeon on April 08, 2011, 10:17:18 AM
I agree with you Wiz , and what gets on my goat is all this nonsense he was a formally a retained firefighter , whats that got to do with anything but cloud the issue.
It is either meant to represent:
a) Being ex fire service he should be an expert, therefore should have known better, or..
b) Being ex Fire Service doesn't make you an expert!
Depends on how you look at it.
I would assume it was for impact and to indicate (a) when actually,through experience,it means (b)!!
I would never blame the firemen themselves for this.
The general public look up to them as gods (often with good reason) who are experts on any subject with the word fire in it. Some firemen even start believing it themselves! They are the 'dangerous' ones.
Just claiming to be a fire-fighter or even an ex fire-fighter does not necessarily make you an expert in anything.
There are as many variations in types of fire-fighter competency as there are in every trade or profession.
For example. Someone could join a LA FRS as a retained trainee. Do three weekends training then go on the run for a year or so. Possibly they will complete a 10 day, BA course in that time, possibly not, then, leave due to their full time work, or family, commitments; (a very common scenario in my experience). They will attend some fire calls in that year or so; varying from about 10 to about 1000, depending on their station’s location and call frequency. Many of these calls will last only a few minutes and be either false alarms, car fires or very small rubbish fires. In fact it is entirely possible for someone to claim on their CV that they are ex-fire service and never have entered a burning property. . E.g. a standalone retained station in my FRS quite close to where I live only receives about 50 calls a year, and many or those are back up to the local high risk WT station and the retained pump is often returned without arriving . How useful/safe are these under trained minimally experienced staff? (rhetorical question)
On the other hand there are ex-fire-fighters, both whole time and retained, who have 30 years plus service, a multiplicity of experience and recognisable qualifications in fire science, engineering, management, training etc etc etc