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Accidents can happen

Updated: Feb 17

It might be thought that in the event of an accident, somebody or something is responsible. After all, accidents are caused, and the cause is often due to the negligence or fault of a specific person or organisation – in short, human error.

However, a recent case in the Scottish courts has drawn attention to the fact that in some instances, accidents just happen and there is no blame or liability.

The case was that of McShane v. Burnwynd Racing Stables Ltd.

McShane was a racehorse trainer who sustained a significant injury to his left arm and a permanent impairment to his left side when a horse he was training fell and landed upon him.

He took action against his employer for negligence at common law and breaches of the Workplace (Health, Safety and Welfare) Regulations 1992 and the Work at Height Regulations 2005. His argument was that the horse had fallen because of deficiencies in the way that the training ground had been laid out and constructed and that his employers were liable.

They denied the allegations. They said there were no such deficiencies, that McShane had been involved in the set-up of the course during its initial construction and that he had given advice on the design that would be most suitable.

No complaints had been received from any member of staff before the incident and it was also argued that McShane would have had the responsibility for maintenance of the surface before anybody rode out on it.

Lord Glennie, the judge in the case, said that he did not find any evidence of a defect, let alone of the type that McShane alleged. He saw no reason to doubt that the horse fell “simply because horses do fall sometimes”. Riding horses, he continued was “an activity that involved the risk of falling.”

Lord Glennie’s next statement is very interesting. He said “accidents do happen without actionable fault on the part of another party.”

This is an important point to make; there are occasions on which neither side will be at fault and therefore any action brought in respect of the accident will perforce fail.

What should employers do?

Employers should take into account the circumstances surrounding a claim made after an accident and, if it can be shown that it occurred without actionable fault on their part, this could be used as part of their defence against the claim.

It should also be borne in mind that such occasions are not as frequent as those in which some fault is behind the accident. An employer will still need to ensure that they are able to provide concrete evidence on the steps that they have taken to make sure that they have discharged their duty under health and safety legislation.

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