Assessing risk rather than trying to eliminate it

The mediaeval heritage of Dunster in Somerset includes – or did until recently – cobbled streets and paths. These are now being ripped up because the highways officers and health and safety people from the local council are worried about the risk of injury to people who take insufficient care whilst walking on them. They are being replaced with paving slabs (the cobbles are being replaced, that is – replacing a council officer with a paving slab would often improve a council’s average IQ considerably).

Some people did indeed fall over on the cobbles which were in poor condition and needed attention. They obviously caused difficulty to wheelchair users. Against that, people fall over council paving every day, the cost of ripping up the cobbles was estimated at £100,000, and it is probable that the wheelchair users, like all the other visitors, came because the place was a rare example of an almost perfectly-preserved mediaeval town. An analysis was made of risk and cost, and the safe and easy option was taken despite the destruction of the very thing which visitors came to see.

Contradictory contrasts emerge between the US and the UK in respect of the general attitude to public risk and in respect of eDiscovery risk. The US appears to us to be very relaxed about everyday risk whilst being obsessed to the point of catatonia with eDiscovery risk; the US in turn thinks that the UK approach to eDiscovery – to spoliation, to preservation and legal hold, and to the completeness of discovery – aims at a laughably low standard compared with the stringent requirements of US discovery.

None of these conditions arrived fully-formed, or developed as a matter of policy. The UK obsession with eradicating risk came from nowhere and evolved rapidly without a master plan; few people involved in US eDiscovery see much sense in the absurdly expensive regime which has grown up. It is hard, however, to reverse evolutionary trends like this even where the majority see them as nonsense.

Let us look first at UK attitudes to general public risk, starting with road safety. Putting it as mildly as possible, highways officers are not drawn from the higher intellectual strata. I drove through a county recently whose roads were littered with the highways department’s injunctions to drivers to “Think!”, something as incongruous as having a pig urge you to improve your table manners or hearing Tony Blair say “Let’s be honest” – the mismatch between the command and the known characteristics of the person giving it is obvious.

It is said that the UK Department of Transport has a formula which is used to estimate how much expense can be justified to mitigate the risk of death, but that this is kept secret for fear of headlines like “Government thinks your life is worth only £2.50”. Readers of the Daily Mail and the sort of people who work in highways departments are unlikely to understand the need for some statistical underpinning for spending decisions. My own highways authority, Oxfordshire, recently boasted of the reduction of incidents following some particularly extravagant roadworks. The cost per incident equated to hundreds of thousands of pounds; furthermore, there was no analysis of the severity of the incidents allegedly prevented, with death and minor bruising apparently treated as equal for these purposes. Further, no causative link was shown between the works and the alleged reduction, with no differentiation between incidents caused by stupidity and those resulting from the road layout. Money had been spent and casualties were down – post hoc propter hoc as the highways officers would have said if their education had run to such expressions. I once asked Oxfordshire County Highways for the statistics underlying its averment that a particular corner was dangerous; they had not thought this a necessary pre-condition for spending money on the alleged problem.

The only UK public servant who ranks lower than the highways officer in public estimation is the health and safety officer employed by local councils and by other authorities. Some of them obviously serve useful functions – one likes to know that minimum standards are imposed on those whose products and work cause potential hazards and put us at a risk which we cannot measure for ourselves. The last decade, however, has seen health and safety carried to ridiculous extremes by a growing army of jobsworths with clipboards instead of brains.

Examples are legion. I particularly like the ones involving the emergency services: the policemen who were banned from using their pedal bikes until they had had cycle proficiency training;  the roadside speed indicators which lay unused because too few policeman had the qualification to climb 3-foot ladders to install them; the lifeboatmen disciplined for rescuing a swimmer instead of watching her drown whilst they completed a risk assessment form. These make particularly good examples because, in each case, a real benefit is lost in pursuit of some petty formal requirement imposed by some whining little runt with too much power relative to his or her brain. New Labour’s conviction that the state ought to be concerned with every aspect of our lives, coupled with its idea that growing the public services was ipso facto a good thing regardless of value or purpose provided the perfect breeding conditions for this sort of creature, in much the same way as weeds and vermin thrive in certain circumstances.

The direct cost of employing these people, large though it is, is trivial compared with the consequential expense, whether the cash laid out in achieving compliance, the loss of banned pastimes or the erosion of the landscape as has happened at Dunster. The cost of erecting unnecessary scaffolding adds to the decoration and repair bills – I once read of a church which waits until all but one of its light bulbs fail because it is no longer allowed to use ladders.  A 19th century fort on which I played as a child is now covered with notices warning that falling off the ramparts onto the beach below could be deleterious to health. Great forms must be completed before children are allowed on a school trips, and I recall completing one wholly irrelevant section by saying that I was “sure that my son’s swimming abilities are adequate for his attendance at a philosophy lecture at the town hall”. Local authority play areas are closed because of alleged dangers too expensive to repair, with the incidental downside that children find less formal places to play, or sit at home playing computer games (and often, incidentally, whilst the local head pen-pusher is drawing a salary greater than that paid to the Prime Minister). A recent tweet told of a man being told he must take a lid for the tea bought on the train “‘cos of ‘elf ‘n safety”; he was just back from Afghanistan, he said, and would risk it. The sign shown here presumably reflects a compromise reached with a local authority whose preference would have been that no seats were provided at all.

Bench

These and many other examples happen at the behest of people who could not accurately differentiate between hazard and risk and who cannot spell either of them. As risk becomes factored out of people’s lives, so their ability to make judgements for themselves is eroded. It is but one of the consequential paradoxes that the decisions are instead being made for them by the sort of people who become highways officers or health and safety inspectors.

A government report referred to “risk assessments compulsory across all occupations, whether hazardous or not, and … to the enthusiasm with which often unqualified health and safety consultants have tried to eliminate all risk rather than apply the test in the [1974 Health and Safety at Work] Act of a ‘reasonably practicable’ approach”. The Health & Safety Executive has long been concerned at the stupidities committed in its name, and welcomed the government report, saying:

“We’ve been saying for some time that health and safety is being used by too many people as a convenient excuse to hide behind. Often it is invoked to disguise somebody’s motives – concerns over costs or complexity, an unwillingness to defend an unpopular decision or simple laziness”.

The US seems to have been spared this obsession with the elimination of everyday risk regardless of expense. I recently watched in New York as a man parked his large lorry, raised a tall gantry and mended a light all on his own; the equivalent task in the UK would have involved at least three people, lots of barriers and signs, and, probably, a detailed risk assessment. I watched two men cleaning airport windows at a US airport from a narrow ledge 30 feet up; the UK requirements would have involved so many people and so much safety equipment that the windows would go uncleaned. In California recently, we found home-made soaps being sold from a street stall, something which now generally requires stringent controls and licenses in the UK; the stallholder said that if she got it wrong then firstly she would be sued (a risk which was insured) and secondly no one would buy her products again. For all I know, these pragmatic solutions may in fact involve breach of some formal requirement, and may in fact result in some element of risk; they do, however, allow life to move on, people making their own decisions without interference from some dim automaton reciting regulations.

The position is reversed, however, when you look at eDiscovery. I love that gasp of astonishment which you get when you tell US discovery audiences that the UK has no formal concept of legal hold, that the scope of discovery is decided by the giver without a request, and that alleged disclosure deficiencies are generally weighed by the judge at trial. To a US lawyer, fearful of both the financial and the reputational consequences of minor omission or of some technical breach of the rules, this seems dangerously lax.

There is room for compromise in most of these things. It is possible that the present UK government will rein in the job-creationism of those who purport to offer health and safety answers to questions which nobody asked. It is probable that UK disclosure questions will be scrutinised sooner than has been the case hitherto, but the context will, I hope, be judge-led initiatives to weigh cost against scope rather than mere alleged failure to comply with formal requirements. Those responsible for giving US eDiscovery must surely begin to recognise, like the UK government’s health and safety report, that the elimination of all risk is neither necessary nor possible. Many of those who seek to achieve this in a UK public context do so because they are too stupid to make proper risk assessments and because they have a strong personal interest in the extension of a culture in which more jobs are created for people like them. We would not want clients to think that about lawyers, would we?

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure. Bookmark the permalink.

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