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August 17, 2009

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In Court Analysis- It ain’t necessarily so

Michael Appleby examines a recent case that demonstrates the danger of the HSE relying purely on the fact that there has been a fatality to prove that an employer has failed in its duty of care.

It has long been the mantra of the HSE that where a work fatality has occurred, this is proof in itself that an employer has breached its general duty of care — either pursuant to section 2 (in respect of employees) or section 3 (in respect of non-employees) of the Health and Safety at Work, etc. Act 1974 (HSWA). In these circumstances, to avoid conviction the employer (pursuant to section 40 HSWA) must prove it took all reasonably practicable steps to control the risk that allegedly led to the death.

In practical terms this means in fatality cases that an employer is guilty until proven innocent.

Support for the HSE’s position can be found in the recent House of Lords decision of R v Chargot Limited and others [2008] UKHL 73, [2009] ICR 263 HL. However, the Lords set out important riders:

  • The HSWA is concerned with ‘material’ risks and does not aim to create a risk-free environment;
  • It may not be enough in all cases for the prosecutor to simply assert the death demonstrates the employer did not ensure health and safety;
  • The prosecutor must show there was a connection between the work and the accident.

In April this year, a judge at Croydon Crown Court cited Chargot when he threw out an HSE prosecution following a fatal workplace accident. HSE v Norwest Holst and Costain concerned the death of a long-serving and very experienced welder engaged in working on the Hungerford Bridge over the River Thames.

On 10 November 2002, the deceased was instructed to assist in the dismantling of a platform. Contravening safety procedures he climbed out of the guarded rails of a safe area of the platform and, unharnessed, walked down a narrow wet beam with heavy welding equipment. As he was dismantling fixings that were holding the structure together it collapsed, and he was crushed to death.

The case first came to court in November 2007. Before the trial the judge invited the prosecution (HSE) to address the question of whether, given the facts, the actions of the deceased gave rise to a foreseeable risk. The judge concluded the risk was “utterly minuscule” and dismissed the charges.

The HSE appealed the ruling, arguing the judge did not have the power to acquit the defendants before any evidence had been called. The Court of Appeal agreed and a retrial was ordered. During the trial all the prosecution witnesses gave evidence supporting the defendants’ position that the risk of the deceased acting in the way he did was unforeseeable and could not have been guarded against. 

The defendants submitted that there was no case to answer. In dismissing the charges, again the judge found there was “not a shred of evidence that there was anything to be criticised in the actions of the defendants”. He said there was “no evidence that such an act [by the deceased] should or could have been foreseen in the circumstances as they existed on the site”. In those circumstances, the burden of proof did not shift to the defendants to prove they had done all that was reasonably practicable.

The judge was scathing of the HSE for bringing this “unnecessary” prosecution and indicated that if the defendants had made an application for the HSE to pay their costs (rather than costs being paid out of Central Funds, i.e. by the State) he would have ordered this. Wisely, the HSE has decided not to appeal the judge’s ruling second time around.

The case demonstrates the danger of the HSE relying purely on the happening of a fatal accident to prove its case. It would appear that either the HSE did not adequately investigate this death, or it did not fully appreciate the evidence. Perhaps of more concern, however, is that when the judge gave his views at the original trial the HSE still thought it was in the public interest to continue.

At the Annual Rivers Lecture delivered by HSE chair Judith Hackitt on 18 March 2009, she declared: “Health and safety management is not about elimination of all risk — it is, and has always been, about doing what is sensible and proportionate — what is ‘reasonably practicable’ — to manage foreseeable risk and then getting on with the task”.

The way in which the HSE has handled this case does nothing to help promote this important and valuable message.      

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