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EAWR section 28 - Defence

E95

I appreciate this is not a legal forum however I suspect there will be some good guidance within this forum.

I notice regulation 28 of Electricity At Work Regulations 1989 states that a valid defence to a breach of regulations is that: "In any proceedings for an offence consisting of a contravention of regulations 4(4), 5, 8, 9, 10, 11, 12, 13, 14, 15, 16 or 25, it shall be a defence for any person to prove that he took all reasonable steps and exercised all due diligence to avoid the commission of that offence."

My question is, what defence is valid for a breach of maintenance Reg 4 (2)? and why is this exempt?

If anyone is aware of any case studies of incidents due to this I would be keen to read them

Regards,

E95

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    not sure if you have read the HSE guide to the EAWR

    https://www.hse.gov.uk/pubns/priced/hsr25.pdf

    but page 16 of the PDF discusses the significance of section 4(2).

    perhaps germane is para 67

    67 The obligation to maintain arises only if danger would otherwise result. The
    maintenance should be sufficient to prevent danger so far as is reasonably
    practicable.


     Suggesting that the condition that one may be 'gripping the bar' in respect of section 4(2) is when a system was not well maintained and then became dangerous.
    I guess the idea is that one cannot claim to have exercised due diligence in something not done.

    also suggesting no need to maintain at all if there is no failure mode that is actually a danger.

    I can see scope for confusion though.


    I'm not sure looking at some of the photos of ancient stuff rotting away, meter boxes with covers missing etc, that pop up on here from time to time, that this is a reasonable position - there are plenty of poorly maintained and could be dangerous assets out there, for which the responsible party is probably in blissful ignorance.

    folk like JP can probably comment from a position of having seen both sides.

    Mike.

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  • 0

    not sure if you have read the HSE guide to the EAWR

    https://www.hse.gov.uk/pubns/priced/hsr25.pdf

    but page 16 of the PDF discusses the significance of section 4(2).

    perhaps germane is para 67

    67 The obligation to maintain arises only if danger would otherwise result. The
    maintenance should be sufficient to prevent danger so far as is reasonably
    practicable.


     Suggesting that the condition that one may be 'gripping the bar' in respect of section 4(2) is when a system was not well maintained and then became dangerous.
    I guess the idea is that one cannot claim to have exercised due diligence in something not done.

    also suggesting no need to maintain at all if there is no failure mode that is actually a danger.

    I can see scope for confusion though.


    I'm not sure looking at some of the photos of ancient stuff rotting away, meter boxes with covers missing etc, that pop up on here from time to time, that this is a reasonable position - there are plenty of poorly maintained and could be dangerous assets out there, for which the responsible party is probably in blissful ignorance.

    folk like JP can probably comment from a position of having seen both sides.

    Mike.

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