Are Safety Advisory Groups unsafe?

Berrymans Lace Mawer LLP public sector partner Roy Woollard comments on the effectiveness of Safety Advisory Groups and whether they can really increase the likelihood of a finding of liability against a council in the following article published in Local Government Chronicle.

A recent decision by the High Court has thrown a spotlight on Safety Advisory Groups (SAGs). Set up in the wake of the Hillsborough disaster as ad hoc bodies through which council-run events can be co-ordinated, they are often, in practice, integrated into a council's operations.

But the case of Furmedge v Chester-Le-Street District Council demonstrates that a SAG can land a council in hot water when things go wrong. The case was brought following an accident in 2006 involving a large-scale inflatable artwork called Dreamspace V, which broke free of its moorings in a gust of wind. Two people died in the tragedy as a result of their injuries. The artist, Maurice Agis, was prosecuted for health and safety offences and the council was also held to be liable because of its relationship with the SAG.

There are three ways in which SAGs can operate to increase the likelihood of a finding of liability against a council following an injury at an event.

1. The council has unclear or non-communicated responsibilities pertaining to SAG. This occurs when the council is potentially liable as the occupier of the land or organiser of the event, and the SAG is brought in to advise on aspects of event safety. Chester-le-Street, according to the judge in Furmedge, admitted liability due to a 'systems failure'. Although the organisers of the event within the council "thought the risk assessment was not very comprehensive…[they] believed that any inadequacies were to be picked up by the SAG". However the SAG understood its remit to be somewhat different - "the ultimate decision over an event was to reside with the person or department promoting the event".
   
   
2. The SAG fails to perform legal duties assigned to it. Where a SAG does assume a legal responsibility to perform health and safety risk assessments, these must be carried out. SAGs should not presume that because their purpose or mission is to be merely advisory, they will not assume legal duties if they step into a role which is directly supervisory.
   
3. Assumption of responsibility by SAG. Even where a SAG has not assumed a part in organising or supervising an event, but is merely offering advice, there remains a chance that it might attract liability. This is on the basis of an "assumption of responsibility". This is where the SAG has voluntarily answered a question or tendered advice or services that will be relied on by the recipient.

A difficult issue to address is whether the relationship between a SAG and a council is enough to put the council on the hook for the SAG's failures. The courts could take the line that because SAGs are established by councils, they are emanations of the council, who will be liable for their negligence.

Such a clear-cut approach is unlikely, as the courts generally toe a more cautious line where public authorities are concerned. But when personnel and procedures overlap between the SAG and the council, or a SAG is given a final say over safety matters, there is a significant risk their failure could attach to the council.

Roy Woollard, partner in the public sector team, Berrymans Lace Mawer LLP