Prosecution of fire alarm engineer

[Tom Sutton]

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?

[kurnal]

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?

[SeaBass]

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.   

[Tom W]

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.

[Tom Sutton]

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?

[SeaBass]

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? 

[wee brian]

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).

[Fishy]

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.

[Demontim]

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.

[CivvyFSO]

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.

[kurnal]

http://www.info4fire.com/news-content/full/fire-alarm-contractor-sentenced-under-fire-safety-order

[Midland Retty]

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.

[kurnal]

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.

[AnthonyB]

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.

[colin todd]

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.