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JGM
JGM, Solicitor
Category: Law
Satisfied Customers: 11139
Experience:  30 years as a practising solicitor.
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The health and safety at work act Assistant: Thank you. Can

Customer Question

The health and safety at work act
Assistant: Thank you. Can you provide any more details to help us find you the right Expert?
Customer: sure! I have concerns regarding the legal implications of a piece of guidance posted on the Water Regulations Advisory Service website regarding contractors liability. they claim-"Whilst a plumber or contractor cannot be held responsible for any infringement in plumbing work carried out previously by others, they do have an obligation to report the infringement to the person who is responsible for those premises and to advise that the infringement be corrected. The ‘responsible person’ has a duty under S73 of the Water Industry Act 1991 to prevent the waste, misuse, undue consumption and contamination of mains water.Whilst contractors should always seek their own legal advice, it is important to note that if the plumber or contractor realises that the infringement is so serious that it could cause a risk to human health it must be reported to the householder, water supplier and Environmental Health. Should the contractor fail to do so and a person is subsequently harmed, he or she could face prosecution"I don't believe this has any basis in law and would be grateful of any advice
Submitted: 10 months ago.
Category: Law
Expert:  JGM replied 10 months ago.

There is a common law basis for this and that is the law of tort. Any person who acts, or fails to act, as a result of which s person is injured or killed can be found liable for their act or omission. In this situation it would be the failure to report and therefore an omission. Note also that if a person is killed there is statutory liability under the corporate mansaluaghter legislation. I hope that helps. Please leave a positive rating so that I am credited for my time.

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Customer: replied 10 months ago.
Hi,
Thank you for your quick response. I have 1 follow up question if I may? to find a contractor liable for the omission, would competency to asses the risk need to be established?
Expert:  JGM replied 10 months ago.

Yes, most definitely. The test would be whether an ordinarily competent contractor would have been able to assess the risk.

Customer: replied 10 months ago.
Stovin v Wise [1996] 3 WLR 389 House of LordsMr Stovin suffered serious injuries when he was knocked off his motorcycle by a car driven by Mrs Wise. She had pulled out of a junction in which visibility of traffic was hampered due to a bank of earth which was topped by a fence. The trial judge held that Mrs Wise was 70% to blame for the accident and that Norfolk County Council were 30% to blame because they knew the junction was dangerous and had been negligent in not taking steps to make it safe. The Council appealed.Held:The council were not liable as liability related to an omission. There had only been three accidents in twelve years which was not enough to render the junction a 'cluster site' under the Council's policy for prioritising funding which required five accidents in three years.Lord Hoffman on imposing liability for omissions:“There are sound reasons why omissions require different treatment from positive conduct. It is one thing for the law to say that a person who undertakes some activity shall take reasonable care not to cause damage to others. It is another thing for the law to require that a person who is doing nothing in particular shall take steps to prevent another from suffering harm from the acts of third parties or natural causes.”if my understanding of the precedent in the above case. The contractor would have to have been instructed and have accepted responsibility for the specific risk. If the risk was noticed but unrelated to the specific instruction then they could not be held liable for the omission.
Expert:  JGM replied 10 months ago.

Yes, I'm aware of that case. The distinction is that in your case there is a specifically published instruction to contractors to intimate any infringement and the notice makes it clear that to do nothing is not an option.

Customer: replied 10 months ago.
to sum up, the only point that makes a contractor potentially liable is the publication of the guidance itself and in order to prove liability they would need to prove the contractor was technically competent to asses the risk?
Expert:  JGM replied 10 months ago.

Yes.

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