April 6th Changes

[JohnW2]

I'll give you that one, providing you can prove with documented evidence, that the installation and fabric of the build was no worse than when you started the work. ....

An important point about all this (which I guess is what AdamCH is saying in some of his posts) is that what you are describing as 'documentary evidence' is, in reality, usually merely a statement written by the person who undertook the work. It's therefore not really very strong as 'evidence', even if written by a 'professional', since it could be complete fiction, particularly in the case of a 'cowboy'. The cowboy (or you or I) could, for example, write down a set of test results which were totally credible, but also totally fictional.

In the absence of third-party inspection, I don't see how this problem can be avoided - and the thing which AdamCH doesn't say is that it applies equally whether the documentattion is written by decent electricians, 'cowboys' or DIYers.

Kind Regards, John

 

[sergeantash]

...describing as 'documentary evidence' is, in reality, usually merely a statement written by the person who undertook the work. It's therefore not really very strong as 'evidence', even if written by a 'professional', since it could be complete fiction, particularly in the case of a 'cowboy'. The cowboy (or you or I) could, for example, write down a set of test results which were totally credible, but also totally fictional.

I couldn't agree more - DIYers like me want to do the job properly and love resources such as DIYNot for getting clarification (PrenticeBoyofDerry has been a great help on a different thread) - we have all the time in the world to get it done and won't take risks into the unknown. Some DIYers are careless, but I always make a point of asking a question if I have a single element of doubt.

At the end of the day, we're all human, some people sing better than those that have had years of lessons, some play the piano better than grade-8 pianists despite not ever having had a lesson (me!), some DIY electricians are better than electricians that have certified and passed a qualification.

http://home.nzcity.co.nz/news/article.aspx?id=166102&fm=psp,tsf

We're all human, and occasionally we all make mistakes.

 

[ban-all-sheds]

And I will add that accredited or qualified doesn't necessarily mean that a job is actioned any better than that of a competent DIYer - I have seen 'professional' work in many of the trades (building, tiling, plumbing and electrics) done to an appalling standard, far lesser than the work I have done myself, as a DIYer.

Whoever does electrical work, be they professional or amateur, be it notifiable or not (which therefore makes opinions/interpretations to do with notifiability irrelevant) MUST, by law, make reasonable provision in the design and installation of electrical installations in order to protect persons operating, maintaining or altering the installations from fire or injury.

Nobody can do that, i.e. nobody can comply with the law, without knowing how they are going to comply, and it would be remarkably foolish for them not to take steps to verify that they have complied.

IANAL, but I'm pretty sure that in the worst case of something happening which led to a court case the onus would as always be on the prosecution to prove beyond reasonable doubt that the defendant had not complied with the law, not for the defendant to prove that he had. Except of course that given the sort of event that would have to occur to lead to a prosecution, unless the defendant was attempting to deny doing the work at all, lack of any evidence from him to show that he complied would probably make the prosecution's assertion of blame true beyond reasonable doubt.

 

[AdamCH]

You mean reasonable provision?

Yes, do you have an answer?

At the end of the day it will be courts that decide what "reasonable provision" means in particular circumstances. I wonder how many of these get to court and what the case law is like on how it has been interpreted to date. How many DIY'ers get prosecuted working on their own home? and would a court interpret reasonable provision differently for a professional and a DIY'er working in his own home?

 

[JohnW2]

I couldn't agree more - DIYers like me want to do the job properly and love resources such as DIYNot for getting clarification ....

I agree with everything you say, but I wasn't actually defending (good) DIYers.

Rather, I was effectively responding to AdamCH's comment that, in the event of some catastrophe, a DIYer's self-produced 'documentary evidence' would not be taken seriously. It would obvioulsy be regarded with a degree of 'healthy suspicion' (since it was 'self-produced') - but the same would, I hope, be true if it had been written by an electrician - particularly if there was a suggestion/possibility that it could have been a 'cowboy electrician'.

Hence, whilst I agree that any self-written documentation is always going to be regarded as weak 'evidence' of anything (in any walk of life), I don't think that applies only when they have been written by DIYers. Indeed, I would go as far as suggesting that a DIYer capable of producing documentation (including test results) which looked credible will, in most cases, probably have done the work competently - although that obviously is not 'guaranteed'!

Kind Regards, John

 

[ban-all-sheds]

"Police and government health and safety officials investigated the death. Charges were considered but it was decided there was not enough evidence to prove criminal offending."

I wonder if the NZ legal system is like ours in that civil actions require a lower standard of proof than criminal - if so, then balance of probabilities would be enough, and the electrician and inspector could be sued by the family.

 

[JohnW2]

IANAL, but I'm pretty sure that in the worst case of something happening which led to a court case the onus would as always be on the prosecution to prove beyond reasonable doubt that the defendant had not complied with the law, not for the defendant to prove that he had. Except of course that given the sort of event that would have to occur to lead to a prosecution, unless the defendant was attempting to deny doing the work at all, lack of any evidence from him to show that he complied would probably make the prosecution's assertion of blame true beyond reasonable doubt.

I'm no lawyer, either but I find it hard to believe that it works (or is meant to work) as you say at the end of that quote. If it worked as you suggest, the prosecution could assert (without any concrete evidence) that any person was guilty of anything, and they would be convicted unless they could disprove that assertion - which sounds 'orribly like "guilty until proved innocent" to me! I would have thought that the prosecution have to produce positive evidence of guilt, not merely the absence of any evidence of innocence.

Of course, if a case got into the civil courts (which is probably more likely than a criminal prosecution), with someone suing for damages consequent upon allegedly incompetent electrical work, then the burden of proof would reduce to 'the balance of probabilities' - which would move the goalposts a fair bit.

Kind Regards, John

 

[ban-all-sheds]

I'm no lawyer, either but I find it hard to believe that it works (or is meant to work) as you say at the end of that quote. If it worked as you suggest, the prosecution could assert (without any concrete evidence) that any person was guilty of anything, and they would be convicted unless they could disprove that assertion - which sounds 'orribly like "guilty until proved innocent" to me! I would have thought that the prosecution have to produce positive evidence of guilt, not merely the absence of any evidence of innocence.

Which is why I talked about whether or not the defendant denied doing the work.

If there was no contention that he did, and if the <whatever> had happened because of, or through interaction with, the work, and if the prosecution's assertion was that the work, which the defendant agreed he did, had not been done properly, and the defendant could not provide any proof that it had been, then....

Here's a reasonable analogy:

Think back to the days before it was all computerised, and the requirement for a car driver to be insured. If a driver could not produce any evidence that he was insured, then the prosecution would not have to check with every insurer and broker in the land to prove that he was not - the simple assertion that as the driver was unable to produce any evidence to show that he was insured then he was, beyond reasonable doubt, not insured, would suffice.

 

[sergeantash]

Here's a reasonable analogy:

Think back to the days before it was all computerised, and the requirement for a car driver to be insured. If a driver could not produce any evidence that he was insured, then the prosecution would not have to check with every insurer and broker in the land to prove that he was not - the simple assertion that as the driver was unable to produce any evidence to show that he was insured then he was, beyond reasonable doubt, not insured, would suffice.

You can't really use that as an example - there is a law specifically stating that it is an offence not to produce such documented when requested, however in the context that we're discussing (electrics) there is no explicit law stating that such artefacts should be presented.

Production of documents. You MUST be able to produce your driving licence and counterpart, a valid insurance certificate and (if appropriate) a valid MOT certificate, when requested by a police officer. If you cannot do this you may be asked to take them to a police station within seven days.

Law RTA 1988 sects 164 & 165

 

[ban-all-sheds]

And if you could not do so, would you only be found guilty of the offence of failing to provide a valid insurance certificate?

Or would you also be found guilty of the offence of not actually having any insurance? (Sections 143 etc in Part VI of the 1988 Act).

 

[sergeantash]

And if you could not do so, would you only be found guilty of the offence of failing to provide a valid insurance certificate?

Or would you also be found guilty of the offence of not actually having any insurance? (Sections 143 etc in Part VI of the 1988 Act).

Again, this is simply a poor comparison and the context is entirely different to the original discussion concerning electrics, and proving whether or not you were responsible for electrical work which caused damage/harm etc.

The charge of "Driving whilst uninsured" is a direct consequence of a failure to produce valid insurance documents, its an entirely different scenario and a bad example based on the original topic of discussion.

 

[ban-all-sheds]

The charge of "Driving whilst uninsured" is a direct consequence of a failure to produce valid insurance documents, its an entirely different scenario and a bad example based on the original topic of discussion.

No it's not.

You might be insured, but if you never bother to go to the police station as required and produce your documents, you will be guilty of failing to produce them. And I agree, there's no equivalent with electrical work.

But if they decided to also prosecute for the separate offence of not being insured, I submit that you would have to prove that you were in order to avoid conviction for that offence - they would not have to prove by explicitly checking with every insurer/underwriter/broker in the country that you were not. Your inability to prove compliance would be enough.

 

[JohnW2]

At the end of the day it will be courts that decide what "reasonable provision" means in particular circumstances.

I rather suspect that they would rely heavily on Approved Document P, which, although not law, is a document issued by the Office of the Deputy Prime Minister with the purpose of providing guidance on how to comply with the law (Part P of Building Regs). Section 1 of this guidance document makes it very clear that work should be undertaken in accordance with BS7671.

As I've said before, give that the Approved Document is not law, someone with adequate knowledge could attempt to convince a court that they had complied with the law (Part P), even though they had not complied fully with BS7671 - but, in the absence of any expert arguments, I would think a court is very likely to go with the 'guidance' and use compliance (or non-compliance) with BS7671 as their main test of whether the law has been complied with. In a sense, this is good for those undertaking electrical work - since it would presumably be pretty difficult for them to argue non-compliance with the law if the work were fully compliant with BS7671.

I wonder how many of these get to court and what the case law is like on how it has been interpreted to date. How many DIY'ers get prosecuted working on their own home? and would a court interpret reasonable provision differently for a professional and a DIY'er working in his own home?

My understanding is that remarkably few such cases have ever got to court - which is the reason why we have to speculate (and why the whole topic may be fairly moot)

Kind Regards, John

 

[PrenticeBoyofDerry]

So the fact that very few if any cases have been taken to court, that allows it to be considered okay to continue installing systems that have not been proved to be safe and documented as so?

 

[AdamCH]

John, I'd agree with all of that, including the bit about it all being somewhat academic as no one ever seems to get prosecuted!