I read in !emc-pstc that Andrew Wood <[email protected]> wrote (in <[email protected]>) about 'Who decides to sign a D of C', on Fri, 12 Apr 2002:
I declined to respond to this article, but as a result of an e-mail exchange with Andrew, I will now do so. >The advice about personal liability was given to me by a professional >consultant >who > used to be the assistant technical director, with responsibility in > this >field, for a very large UK > engineering company. This position was reached in conjunction with that >company's legal department. I am not surprised; lawyers deal with the law, but the real world is not just the law, there are other factors. Even within the law, there is the principle of 'pro bono publico' - it is not a good use of public funds to pursue individuals just for the sake of it. > > I am not qualified to agree nor disagree with the advice. But I did > feel >that, bearing in mind the provenance, > it was worth passing on to the original enquirer. > Because it has been explicitly put to me that the signatory may have >personal liability in this specific situation- > then I would like to be assured that an argument otherwise is based on >sound knowledge rather than > an assumption extrapolated from the fact that he/she doesn't bear >personal liability in most/all other cases. The signatory to a DOC does bear personal responsibility, BUT it is usually almost impossible to prove personal responsibility, even in prominent cases such as the Herald of Free Enterprise, the Marchioness, the Channel tunnel fire, the rail crashes, etc. > >> And suggesting that the signatory has professional indemnity >> insurance does not take that into account. Unless some administration >> becomes very militant, legal action against the company is likely only >> if it does not co-operate with the authorities. >> > Would it be true to say that legal action may be much swifter in the >case of (alleged) negligence > leading to fatalities? > No, it often takes a very long time - consider the Marchioness fiasco, for example. > >> Legal action against the >> signatory is likely only if he/she is a party to that non-co-operation, >> and is thus an utterly foolish person. Guilt in such a case would be a >> criminal matter and insurance does not cover the perpetrator for the >> consequences of criminal acts. >> > It is likely that a civil claim would follow any criminal case. > If the corporate structure has become fragmented due to eg mergers, >acquisitions or even total colapse, > then who is left with their signature on a DoC testifying that the >product which has just (killed someones baby, burnt down a home etc...) is >safe? If a signatory were cleared or not charged in the criminal proceedings, a civil action would be ill-advised, even though the burden of proof is less. The signature shows that the 'type' product is safe. The plaintiff would have to show that the signatory could and should have been aware that the defect which caused the incident could nevertheless occur, and should thus not have signed. But that is the same as showing criminal responsibility, except for 'burden of proof', and a case that depends on that is usually very weak indeed. If the defendant has PI insurance, it might be worth proceeding on a 'no win, no fee' basis. But if the defendant DOESN'T have PII, then, unless he's a lottery winner, he's unlikely to be good for substantial damages. As I wrote before, a signatory convicted of criminal responsibility cannot depend on insurance to indemnify him for that. > > I am not arguing that the above scenario should or will happen. > I am not arguing that insurance is required for each and every >signatory, in every conceivable situation. > What I am saying is that *so far* the arguments for a total rejection > of >the idea have been unconvincing. The points are: - a signatory won't be prosecuted unless it is abundantly clear that he was either actively irresponsible or completely negligent. - a signatory who is not convicted has little to fear from a civil action. But if he has PII, it might be worth trying to pursue him! - a signatory who is convicted has automatically voided his PII. -- Regards, John Woodgate, OOO - Own Opinions Only. http://www.jmwa.demon.co.uk Interested in professional sound reinforcement and distribution? Then go to http://www.isce.org.uk PLEASE do NOT copy news posts to me by E-MAIL! ------------------------------------------- This message is from the IEEE EMC Society Product Safety Technical Committee emc-pstc discussion list. Visit our web site at: http://www.ewh.ieee.org/soc/emcs/pstc/ To cancel your subscription, send mail to: [email protected] with the single line: unsubscribe emc-pstc For help, send mail to the list administrators: Ron Pickard: [email protected] Dave Heald: [email protected] For policy questions, send mail to: Richard Nute: [email protected] Jim Bacher: [email protected] All emc-pstc postings are archived and searchable on the web at: http://ieeepstc.mindcruiser.com/ Click on "browse" and then "emc-pstc mailing list"
