Kevin Bridges discusses three recent cases that highlight how risk must be real, rather than hypothetical, if cases against defendants accused of not managing that risk are to succeed.
A trio of recent cases has clarified some of the hurdles facing the prosecution and defence in health and safety prosecutions.
The first of these was R v HTM Ltd [2007] and [2008]. In this case, HTM provided traffic management services for contractors resurfacing a road. Two of its employees were electrocuted while attempting to move mobile towers, which came into contact with overhead power cables.
HTM was prosecuted for failing to discharge its duty under section 2(1) HSWA 1974. The Court of Appeal decided in 2007, as a preliminary issue, that foreseeability was an integral part of reasonable practicability, which was itself a qualification of the statutory duty, not a defence. The case was then sent for trial in the Crown Court and was heard earlier this year.
The trial judge said reasonable practicability had to be approached in the following stages:
€ﾢ Whether there was an appreciable risk to employees’ safety;
€ﾢ If there was a risk, what the incidence of the risk actually was;
€ﾢ How that risk had been addressed by measures already in place;
€ﾢ How effective and costly further measures would be.
In the case of R v Chargot [2007] the Court of Appeal made clear that the risk to the health and safety of employees, or the public was the trigger for potential liability under sections 2 and 3 HSWA, and it was for the prosecution to prove that a given state of affairs created a risk.
Once the risk was identified, that was sufficient to impose the onus under section 40 HSWA on the defendant to prove it had done all that was reasonably necessary to prevent, or avoid it. Therefore, it was only necessary for the prosecution to prove there was a risk of injury arising from a state of affairs, rather than identify and prove any specific breach of duty.
The trial judge identified in HTM that stage 1 could be both the beginning and end of the prosecution, if the risk was unforeseeable. The question whether or not a state of affairs gave rise to a risk of injury was also considered by the Court of Appeal in Chargot, where it was held that the risk the prosecution had to prove should be real, as opposed to hypothetical.
This important question of risk was considered more recently by the Court of Appeal in R v Porter [2008]. The defendant (P) was a school headmaster who had been convicted under section 3 HSWA in relation to the death of a young child.
P was headmaster of a private school for children aged between three and 16. A three-year-old suffered a head injury after jumping from a flight of steps leading to a playground. While in hospital, the child contracted MRSA and died. In a landmark decision P successfully appealed his conviction, which was quashed.
Lord Justice Moses in the Court of Appeal said that ‘risk’ had to be a real risk and not fanciful, or hypothetical. He went on to say that “there was no objective standard or test applicable to every case” by which to draw the line between the real and hypothetical.
However, the absence of any previous accident in circumstances that occur day after day would be highly relevant. The fact that the risk may be a part of everyday life went to the issue of whether the injured person was exposed to the risk by the conduct of the operation in question. The closer it is to risks encountered everyday the less likely it will be a risk created by the defendant.
Therefore, unless there is a real risk, as opposed to a theoretical or fanciful one, the question of what reasonably practicable measures could be taken does not arise, and the prosecution will fail.
These cases go some way to rebalancing the law in the field of health and safety in favour of the defendant, and will be relevant both to prosecutors, in deciding whether to bring a prosecution in the first place, and to defendants, in deciding whether or not to plead not-guilty.
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It’s good to see the ruling which ciminalised a headmaster being overturned and the concept of everyday risk being reinforced.
Regarding Chargot, I’m a bit concerned that a battle for who’s risk assessment is correct will result in delays and mixed decisions since no two risk assessors are likely to reach the same decision in all but the most clear cut of cases although failure to comply with a regulation may cover this weakness.