UK readers will recall this tragic accident in November 2011 when 51 people were injured and seven killed in an accident on a fog bound motorway.
What marked out the accident from a typical collision in fog was the suggestion that the environmental conditions had been exacerbated by smoke that had drifted onto the motorway from a fireworks display at nearby Taunton Rugby Club.
This suggestion excited a lot of press comment. Geoffrey Counsell, the fireworks professional who had been contracted to organise the event, was subsequently charged with manslaughter. The prosecutor’s allegation was that he had fallen so far below the standard or care he purportedly owed to the motorway traffic that a reasonable person would think a criminal sanction appropriate.
It is very difficult to pick out from the press exactly how this whole prosecution unravelled. Firstly the prosecutors resiled from the manslaughter charge, a most serious matter that in the UK can attract a life sentence. They substituted a charge under section 3(2) of the Health and Safety at Work etc. Act 1974 that Mr Counsell had failed “to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that … other persons (not being his employees) who may be affected thereby are not thereby exposed to risks to their health or safety.”
There has been much commentary from judges and others on the meaning of “reasonably practicable” but suffice to say, for the purposes of this blog, that a self employed person is required to make substantial effort in protecting the public. That said, the section 3 offence carries a maximum sentence of no more than two years’ imprisonment.
The trial on the section 3(2) indictment opened on 18 November 2013. “Serious weaknesses” in the planning of the event were alleged. There were vague press reports about Mr Counsell’s risk assessment but insufficient for me to form any exact view. It does seem that he had not considered smoke drifting onto the motorway and interacting with fog to create an especial hazard to drivers.
A more worrying feature of the prosecution was the press suggestion that an expert meteorologist had based his opinion on a biased selection of witness statements that he had been provided with and which described which way the smoke from the fireworks display had been drifting. I only have the journalistic account of the trial but it looks far from certain that the smoke did in fact drift towards the motorway.
In any event, on 10 December 2013, following the close of the prosecution evidence, the judge directed the jury to acquit Mr Counsell. The prosecutors had brought forward insufficient evidence against Mr Counsell for a jury reasonably to return a conviction, even without any evidence in his defence.
An individual, no matter how expert, is at a serious disadvantage in identifying novel risks. An individual’s bounded rationality will always limit the futures he can conjure and the weight that he gives to them. To be fair to Mr Counsell, he says that he did seek input from the Highways Agency, Taunton Deane Borough Council and Avon and Somerset Police but he says that they did not respond. If that is the case, I am sure that those public bodies will now reflect on how they could have assisted Mr Counsell’s risk assessment the better to protect the motorists and, in fact, Mr Counsell. The judge’s finding, that this was an accident that Mr Counsell could not reasonably have foreseen, feels like a just decision.
Against that, hypothetically, had the fireworks been set by a household name corporation, they would rightly have felt ashamed at not having anticipated the risk and taken any necessary steps to protect the motorway drivers. There would have been reputational damage. A sufficient risk assessment would have provided the basis for investigating whether the smoke was in fact a cause of the accident and, where appropriate, advancing a robust and persuasive rebuttal of blame.
That is the power of risk assessment. Not only is it a critical foundational element of organisational management, it provides a powerful tool in managing reputation and litigation risk. Unfortunately, unless there is a critical mass of expertise dedicated to risk identification it is more likely that it will provide a predatory regulator with evidence of slipshod practice. Its absence is, of course, damning.
As a matter of good business and efficient leadership, the Highways Agency, Taunton Deane Borough Council, and Avon and Somerset Police ought to have taken Mr Counsell’s risk assessment seriously if they were aware of it. They would surely have known that they were in a better position than Mr Counsell to assess risks to motorists. Fireworks displays are tightly regulated in the UK yet all such regulation has failed to protect the public in this case. Again, I think that the regulators might look to their own role.
Organisations must be aware of external risks. Where they are not engaged with the external assessment of such risks they are really in an oppositional situation that must be managed accordingly. Where they are engaged the external assessments must become integrated into their own risk strategy.
It feels as though Mr Counsell has been unjustly singled out in this tragic matter. There was a rush to blame somebody and I suspect that an availability heuristic was at work. Mr Counsellor attracted attention because the alleged causation of the accident seemed so exotic and unusual. The very grounds on which the court held him blameless.