Duty of Care

With the Misra Case Trial Transcript being published and the recent error we have found in Horizon it has led me to have a look at the law surrounding duty of care.

Wiki states the following:

The leading judicial test for a duty of care in England was found in the judgments of Caparo Industries plc v Dickman,[2] in which the House of Lords set out the following three-part test:

  • Harm must be a “reasonably foreseeable” result of the defendant’s conduct;[3] [4] [5]
  • A relationship of “proximity” must exist between the defendant and the claimant;
  • It must be “fair, just and reasonable” to impose liability.

 

POL clearly has a duty of care to its subpostmasters.  It does not need to be written in to the contract for that duty of care to be challenged in the courts, should someone consider POL to be negligent in their duty in this regard.

Harm – which can be economic harm – is of course reasonably foreseeable.  We know for instance that errors in Horizon do arise from time to time – for instance the recent Lottery Quickpick mess – that gives rise to SPMR liability to POL.   POL respond to their duty of care here by informing all branches that the error exists and that they will fix it.   They advise branches that they will not incur any financial liability to POL as a result.

There is of course a relationship of proximity between POL and the SPMR and that cannot be argued.

And then it must be fair just and reasonable for a SPMR to seek redress from POL under their duty of care responsibilities.

So this leads us to unexplained losses.   What exactly is POL’s duty of care with regard to these?   Is it fair that POL do not accept any responsibility for these?  Is it just that they should? Is it reasonable to expect that they should have some responsibility for identifying where these errors have occurred rather than placing the burden on the SPMR?

At the end of the month a SPMR balances his books and finds that he is £500 down.   He reports his balance to POL and immediately becomes liable for that amount to POL regardless of how it was caused.

Is that fair?  Does POL not have a duty to assist the SPMR in determining what has happened to the money?  Is that not a reasonable thing for them to do?   How can POL be certain that a computer error did not cause the losses?   How can POL assist the SPMR to make sure it doesn’t happen again or help the SPMR track down the person who has ultimately gained from the SPMRs loss?

Lots of questions.

In the Misra case, and no doubt others, the Judge and the prosecution were very clear on this, it was the SPMRs responsibility to identify errors caused by the computer if they existed.   I could and have said a lot about that being a wrong assertion, however, if it is the case that SPMRs are responsible for identifying computer errors and bringing them to the attention of POL for correction (after all it was presumably a SPMR who told them about the Lottery Quickpick example – God only knows how that slipped through testing)  then failure to identify a computer error when it happened that later went on to affect hundreds of branches could lead to the ridiculous situation that a SPMR could be held liable (under duty of care) for NOT identifying it and reporting it to POL.

Now that’s what I call unreasonable and ludicrous to boot.

Both the current error I have discussed on this blog as well as the error several years ago in Calendar Square Falkirk which was mentioned in the Misra trial tell us that when intermittent computer errors occur, identified by the SPMR and notified to POL, POL do not communicate these to the rest of the network and wait many months before releasing a patch to fix the error.   Now that is totally unreasonable.

In the current error that is waiting to be fixed in March next year, I know that Fujitsu have not identified the cause of the error.  They should be aware of this but they are not.  POL know that Fujitsu will ‘fix’ it in March and I presume they will fix other errors at the same time that SPMRs may not know about.  So what happens between now and then?   If a SPMR takes £24k out of the safe and hides it away somewhere and blames its absence on a computer fault what happens then?

What can POL do?   The answer is absolutely nothing.  Assuming the SPMR declares the actual cash balance so not to be guilty of false accounting then POL do not have a leg to stand on.  They can’t go to court relying on the SPMR contract because all the SPMR needs to do is to show that POL are sitting on an error that they haven’t told him about and when the details of the error come out in court it will be shown that Fujitsu don’t even know what caused it to happen in the first place.  SO they cannot imply the SPMR should have identified the fault when it happened because even Fujitsu couldn’t when they knew exactly where and when to look!  Totally absurd.

What POL should have done is another matter.  Right from the start of introducing an unreliable computer system into the workplace of the SPMR they needed to change the contract and the way they operated.  They could no longer rely on the contract to pass all risks on to the SPMR.  They had to incorporate protection for themselves in much the same way as they incorporate protection for themselves in the case of robbery.

There had to be some form of due care responsibilities allocated to the SPMR so that all losses could be investigated.   These responsibilities could have included the use of CCTV covering all places where value stock was handled and transactions took place and the storing of the footage for a relevant time.    Sounds familiar?   That is exactly what POL does at its Cash Centres.   Why there and not at branches?   A good question I think.

There is more they could have done but that example alone is proof that in order for POL to escape the onus of fair, just and reasonable in the provision of duty of care, they had to change their ways when the computer system was introduced and they did not.

 

 

 

 

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My Answer to the Conundrum (part 1)

Hi

Thanks to all of you who contributed to the debate most of which was concluded on the CWU Postmasters Facebook page.   Some great premises of how the conundrum could be explained.   As I mentioned, there may well be several different explanations but here is mine – particularly worded to provide a background to perhaps a further debate on whether the original conviction should be overturned or not?

Let’s start with the last event where the error was discovered.   It was a particularly hot day, but any of you who have lived and worked in a hot environment will know that when the ambient air temperature is 40C plus you don’t actually notice much of a difference whether the temp is 41C or 49C because you are in shade most of the time and at those temperatures the air is most often still and dry.

The checkpoint where the truck was stopped was only a few hundred yards outside the factory.   The scales used in this temporary weighbridge were calibrated that day and in that heat.   They were also of a different manufacturer from the weighbridge in the factory.   When the truck was stopped and found to weigh 45T the driver told them he had just had it weighed and it showed 35T.   SO the police took the truck back to the factory and sure enough the weighbridge registered 35T.   It was clearly in error.    An investigation took place.   All digital weighing devices have to allow for the ambient heat in their calculations and the heat sensor was tested and working fine.   The software however revealed the problem.  The programmer for the manufacturer was from Scotland.   He had no idea that ambient temperatures could go over 40C but nevertheless he allowed for a maximum of 45C in his algorithm (canny bugger!) Unfortunately the ambient air temperature that day was 49C and the algorithm was such that it resulted in the weight being calculated far lower than it actually was.

Realising the previous instance of this error had caused a fatality the Police looked at the temperature records at the time of that incident.  They found that that day the ambient air temperature at the Factory was 49C but the day after when the truck was brought back to weigh the temperature was only 42C.  Thus the weight was recorded too low on the day of the accident but completely different weight the very next day.

Who was at fault here.   Australia is the land of the man who sued God after all.   Was it the programmer?  Was it the weighbridge operator for not calibrating the weighbridge every day even though the manual said it was only needed to be done once a month?   Was there a contract involved?  Did the weighbridge manufacturer provide warranty?  What would happen if the warranty had expired?   Was the driver still liable because he should have tested the efficacy of the weighbridge everytime he used it?

Lots of questions and this time I have no real answers but would be happy to join in a discussion on it.

Cheers, Tim

 

 

Weekend Conundrum

Hi

Below you will find a conundrum of sorts.  The story itself is hypothetical and I am looking for a rational but obviously hypothetical explanation of how the events described could have come to pass.   There may be more than one perfectly reasonable explanation but I have written the story with one of my own in mind.  The only clue I can give you is that my explanation is linked to the current Horizon scandal.

A few years ago …..

Every day in a small town in South Australia, an HGV leaves a small factory with a trailer loaded with product.  Before it leaves the factory the trailer is weighed to ensure it does not exceed the 40 tonne limit.

On one particular day a driver hooks up his lorry at the factory and proceeds to the weighbridge.  The weighbridge operator checks the weight with the driver and they agree it to be 35 tonnes.   The lorry driver continues on his journey and 500km down the road is involved in a fatal collision caused by his truck failing to stop in time and crushing a stopped car in front of it.   The police are called.  They inspect the lorry and the trailer is taken to a local weighbridge to be checked.  It is found to be 45 tonnes – 5 tonnes overweight.

The driver is adamant that the factory weighbridge gave him a weight of 35 tonnes so the next day the police transport the trailer to the original weighbridge and weigh it again.  It shows 45 tonnes.   The driver then points out to the police the sealed doors on the trailer.   He asks them to check the CCTV images of his lorry being weighed.   The CCTV reveals nothing out of the ordinary and the weighbridge operator confirms this.

In court the driver was found guilty.  It was assumed that somehow he placed an additional 10 tonnes of product in the trailer – perhaps from another factory that was on the way – and resealed the trailer in some way to prevent detection.  It was the only reasonable explanation.  The weighbridge scales at the factory had been tested and calibrated by the police and found to be in order.

Three years later, an identical situation arose.  A trailer leaving the factory had been weighed at 35 tonnes and when stopped by the police at a checkpoint was found to be 45 tonnes.

The police then realised what had happened three years earlier.

What unlikely event(s) occurred that caused the difference in weights measured to happen?

As a secondary question, was the first driver still culpable or was he exonerated from his original conviction?

Please post your answers here – I think they will really help us get to the bottom of the Horizon issue in more ways than I can reveal just now.

I’ll post my solution later in the week and explain the relevance.

Cheers, Tim

PS one additional clue – both events happened in Summer

 

 

 

The Computer Weekly Article

If you haven’t seen it already you can read it here … http://www.computerweekly.com/news/4500257572/Post-Office-IT-support-email-reveals-known-Horizon-flaw

It reveals more about POL and their attitude towards Subpostmasters and those that seek the truth about the unexplained losses incurred by Subpostmasters around the country on a daily basis.

CW provided POL with details of the error that has been documented on this blog for comment.

What they got in reply was this …

Quote …

The Post Office’s head of communications, Mark Davies, said: “We look at any and all issues raised with us through our channels. Obviously if any postmaster calls our service lines with a query we look at it, as you’d expect. The issue has been raised with us through our normal channels (postmaster contact to service centre) and answered through those channels.”

Computer Weekly also asked the Post Office several questions about the contents of the Atos email to understand if the two problems were the same or separate. The Post Office said: “We will not be commenting on this issue any further other than to say that the Post Office takes its responsibilities towards its postmasters extremely seriously and wholeheartedly rejects any suggestion to the contrary.”

End Quote ….

Well what did this genius of a communications head actually say … more to the point what didn’t he say?

LET ME BE VERY CLEAR HERE – HE DID NOT DENY THE ERROR EXISTED NOR THAT FUJITSU WOULD PROVIDE A SOFTWARE FIX FOR IT IN MARCH NEXT YEAR.

He said POL look at these problems.   What he didn’t say was if they actually do anything about them.   If he had investigated the problem raised – a very serious problem or perhaps £24k isn’t serious enough for Mr Davies to bother about – he would have found that ATOS had advised they had found a problem in Horizon that gave rise to this error.   Not only that, Fujitsu were going to fix it in March next year – 4 months while the problem is still out there waiting to catch SPMRs and lose them money.

Mr Davies goes on to say that POL takes their responsibilities towards its postmasters extremely seriously.   Wow – really?   He will need to define those responsibilities for us then because clearly they don’t include the responsibility to advise the SPMRs that an identified fault in HOL is out there and if it affects them they could well lose money as a result.

Mr Davies clearly has not looked into this matter very closely.   He says the SPMR contacted POL through the normal channels.  Well I suppose this is actually correct but what he doesn’t seem to realise is that those normal channels didn’t work.   The SPMR in question had to rely on a CWU forum to get the correct advice and eventually a ‘private’ number in Chesterfield to call.

The CWU though took the appropriate action and advised their members of the problem and what to look out for.   Mr Davies does not comment on this action either which is interesting.

Nor, in a change of tact from previous utterances by this mouthpiece of POL, does he deny that the problem does not exist.   He doesn’t, according to the article, spout forth about the fact that HOL is robust and handles x million transactions per day so it must be perfect.

It is frankly appalling behaviour and leads me to conclude that there fast approaches the time when POL management are going to be held to account, not only for their actions but their inaction.   The question then is will they be held to account by the courts and will this happen through the civil courts or the criminal courts?

The not so funny thing about all of this is that we have reached the stage where the error is not the main issue here any more or the losses it could create for SPMRs.  It is how POL have handled it or not handled it as the case may be.

My last question is Why?   Why are POL doing this – ignoring a serious problem within their organisation?    Do they honestly believe it will go away?  Do they think they actually know what the problem is that caused this particular issue?   They cannot know that because then they would need to know what I have found out in addition to what was revealed in Computer Weekly.

This next paragraph is extremely important so POL if you are reading this take note … I don’t imagine you will grasp its significance …. yet.

Alternatively do they think it appropriate that this bug that they have wrongly identified needs only be ‘fixed’ in March and that their ‘internal systems’ will pick up all instances of it occurring between now and then?  Well unfortunately they can’t do that – because they can’t identify when the error actually occurs they can only look for the effect of the error in their transaction logs.  That effect is not unique to the error that causes it so they don’t and cannot have any way to say what has caused it.

But maybe they know all this already?   They have placed themselves in a position over the last few years when defending accusations over the unreliability of HOL that they cannot come out and say – Ooops it was all a mistake – we should have listened – we should have realised.   Are they protecting themselves in all of this?

That is a conspiracy theory too far.  Too many people are involved for this to be a cover up.  A whistleblower would have come out of the woodwork by now.   I think it is all down to plain and simple incompetence which to me, based on my experience dealing with POL, is a very logical conclusion.

 

 

Are RMG now pulling the strings at POL?

I wrote a blog recently about the choices Moya Greene at RMG had now she was free from the shackles of direct Government control.   I mentioned the new 2D label printing process as an example.

On reflection – having come across an interesting RMG web page about these new labels ( http://www.royalmail.com/business/help/preparing-your-mail/getting-barcode-ready-frequently-asked-questions ) it seems to me that Moya may have already been using some muscle on POL before the last Government owned shares in RMG were sold.

You see the introduction of these labels came as a ‘surprise’ to the SPMR network a couple of months ago.   A trial they said – to see how it goes.  SPMRs were (still are) furious about not only the extra work but the imminent withdrawal of the ability to print multiple labels of the same value that has saved them time in the past when processing multiple items that require the same postage label.   No indication of any additional payment for the extra time involved in entering the post code for each parcel.

But all this started years ago and POL would have known about it.   The RMG website says that RMG would be ready to accept these new labels from October 2015.   Well let’s think back a bit about that.   The equipment required to scan these labels would have had to be ordered and installed in good time.   Say a year for that.  A selection process – possibly a tender – would have been required – at least 6 months.  A budget for the purchase would have to have been approved – another 6 months.  A feasability study, a policy decision and an initial concept – all these would have taken time – say another year.

So at least three years ago RMG would have committed themselves to this new process.   POL would certainly have been told along the way – when? who knows.   As I mentioned in my earlier blog – one of the benefits to POL of this new process is that it adds value to their part in the posting of parcels and perhaps strengthens their ties to RMG through the MDA.

Trouble is nobody told the SPMRs – forget the NFSP – they are totally irrelevant in the whole process now – what better example than this to prove that.

SPMRs now want more pay for performing the extra work involved.  Fair enough you might think.  But consider this – the costing for this project was completed 2 to three years ago.  If there was to be additional payment to POL for providing this ‘extra’ then that deal would have been done at that time in order to include it in the budget.

Look again at the RMG website page (above) and see that RMG say that once this system is fully operational it will actually cost them more to process non 2D labels and a surcharge may be likely!   Mmm I suspect that non compliance/branch standards will soon become an issue here.  (once again POL have not given that any thought – shoving stamps on a parcel may become a more cost effective solution for SPMRs!)

But … I actually think the use of the 2D label is a great idea and I can see it being extended eventually to letters.  It does add value to the service that Post Office can provide.   It will certainly result in a more efficient process for RMG and a great transformation in customer service – imagine all postal items being tracked!   At a stretch of the imagination I could see the day when stamps become a thing of the past and labels are required on everything.   This would lead to a bigger demand on the Post Office service and the network would remain a key integral part of the Postal Services infrastructure of this country.

The RMG website gives us another clue about how RMG are now pulling the strings.   For several years now – particularly since the separation of POL from RMG, RMG have been ‘pinching’ Post Office bulk customers.   plenty of reports of RMG approaching these customers directly with enticing offers to save money by dealing with them direct.   My guess is that this has largely gone unchecked – primarily because once a customer has left the branch to go direct with RMG – they are unlikely to go back.   CABPost of course would welcome this as long as the consumer benefits and in any case what can POL do about it?   I am sure I have read somewhere that there were restrictions on doing this placed on RMG by POL in the MDA but are POL really going to upset their largest customer?

I get the impression that RMG will now do all they can to secure these bulk customers from POL – it makes sense to them and the customer.   POL just don’t have a leg to stand on anymore.

A new direction is called for – a new agreement – I hate to say this – A memorandum of understanding perhaps – between POL and RMG – maybe even an ‘integrated’ ownership solution.  Then again – do we need POL in its current form any longer?

More on this to come ….

 

 

 

 

Leaving the EU – The Binary Consequences

Off my chosen subject this morning but after watching Question Time last night it got me thinking that politicians once again are ignoring, and not debating, the crucial consequences of the result of the forthcoming Referendum should we choose to leave the EU.

Surely there are only two consequences.   The UK either benefits from doing so or it suffers.

If it is seen that the UK benefits from leaving the EU then that in turn has a disastrous effect on the future of the EU.  It will surely lead to its ultimate collapse as other countries either leave or threaten to leave.   Threatening to leave will provide them with as much if even more political leverage to negotiate a better deal for their country, so ultimately the collapse of the EU is almost certain.

But more importantly I think, for the discussion that is going on now in the UK, is the consequence should we suffer as a result of choosing to leave,

Knock, Knock?   Can we come back in please?   We have been a bit silly, will you forgive us?

The bargaining power that David Cameron has now prior to the referendum will have disappeared.  Terms will be dictated to us by them – not the other way round.  Sure they will want us back but on terms that could even include having the Euro.  Rather unpalatable I would say.

Its a stretch of the imagination probably but I equate Cameron’s leverage now to the Corbyn Trident Deterrent issue.   Cameron has a loaded gun at the EU’s head and promises to use it (give me what I want or I will campaign to leave).   In QT last night the other politicians round the table derided Javid for not being able to say which side he would campaign for.   Well if the Tories did decide prior to the outcome of the negotiations which side of the Referendum fence they were on then that is akin to putting a blank in Cameron’s loaded gun – the ‘deterrent’ would be meaningless.

I don’t know which way I will vote in the referendum yet – I will be most persuaded by successful businessmen I think.  The EU is all about Trade really and the regulation of it.  It is what will determine whether we are to succeed or fail should we leave the EU.  The businessmen will know better than I how it will affect us all.  Is the risk of leaving and failing worth a gamble?

What’s Wrong with a bit of Competition?

It seems to me that both Post Office Ltd and Royal Mail Group PLC are missing a bit of a trick.

Historically of course they had no competition.  You wanted to post a letter or a parcel then you had to go to the Post Office.

But times have changed.   Competition is rife in Mails as well as in Bill Payments, another POL product that has seen increased competition over the last couple of decades.

A punter now with three home shopping returns and three bills to pay could have to visit several different shops to complete his transactions – and be infuriated in the process – yes you can pay that bill here but we don’t do TV Licences.  Retailers now become travel advisors to these customers – Post Office for your Amazon sir, Newsagent for your Hermes and COOP for your TV Licence – oh yes and you can pay your council tax bill here of course.

The POL Network Transformation project boasts how the increased footfall of having a PO in your shop will more than recompense the loss of retail floor space.   What they don’t tell you is the loss of footfall when you have to agree to get rid of your Paypoint and Collect+ operation.   You can’t have competitors products sir when you have a PO.

And its not just POL.   The other parcel companies don’t want you offering their competitor’s products and Paypoint won’t tolerate Payzone in the same shop.

Yet these service company’s own customers are happy – in the main – for more than one of the bill payment companies to supply their customers.

All rather bizarre when we consider that the current buzz word in retailing is convenience.

Just what would happen if a store could offer all or any of the services that these competitors provide?

And here is the trick that POL and RMG are missing.   It’s the sign above the door.  It says Post Office.  No other outlet can say that – copyrighted you know!

A consumer with a parcel to post would go immediately to the Post Office if they knew no matter how the parcel was ultimately shipped they could rely on it being dealt with at the Post Office.  It’s the name you know!  A dead give away say I.  And of course vice versa.  What is the point of ‘convenient’ parcel collection points when you might have to visit three different ones to get all your goodies.

If the same consumer could pay all their bills at the Post Office surely that would be their destination of choice?   May not be in the name but the brand has always been linked to money.

More footfall, more income for the retailer.  Maybe less income for POL but in the end a successful and viable business selling their products – and that is what they desperately need.

For RMG and the other delivery companies – surely a compromise is possible.  POs collect for all, RMG collect all from the POs and deliver them to the courier companies from a centralised location.  Not just economic savings to be made but also a much greener solution.

The customer of course gets at last a choice of delivery options based on price, quality and service.   All delivered to them by a professional subpostmaster who gets to see at last a financial reward on his investment.

Makes sense to me….