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December 12, 2008

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Lords’ ruling confirms burden of proof lies with employers

The House of Lords has ruled that in safety cases involving an injury the prosecution is under no duty to identify and prove specific acts or omissions, but the defence must show that it has managed the risk so far as is reasonably practicable.

The Lords delivered the judgement on 10 December, which upheld the Court of Appeal’s decision last year in R v Chargot Ltd and others. The appeals by Chargot and Ruttle Contracting were against conviction under the HSWA relating to the death in January 2003 of Shaun Riley. Mr Riley was driving a dumper truck up a ramp when it overturned, burying the worker under the spoil being carried in the vehicle.

Chargot, who employed Mr Riley, and Ruttle Contracting were found guilty under sections 2(1) and 3(1) of the Act, respectively, and were fined £75,000 and £100,000. George Ruttle, a director of both companies, was also found guilty under s37 of the Act, and was fined £75,000.

The prosecution argued at the appeal that all it had to do to prove a prima facie case was to prove there had been an exposure to risk. The Court of Appeal agreed, and considered that the prosecution had clearly established the relevant risk of injury caused by driving the truck, describing it as “a real risk, as opposed to a purely hypothetical one. . . established by the fact there was an accident”.

The companies took the case to the House of Lords. Their lawyer, Richard Lissack QC, argued that it was not enough for the prosecution simply to assert that a state of affairs existed, which gave rise to a risk to health or safety.

He argued that, in order to be compatible with the presumption of innocence guaranteed by the European Convention on Human Rights, the prosecution had to identify the specific acts and omissions by which it was alleged there was a breach of duty under sections 2(1) and 3(1) of the Act. Only then, asserted Mr Lissack, could the appellants put forward a defence to those acts and omissions.

The Lords rejected Mr Lissack’s submission, but also confirmed that cases that did not result in injury could demand more evidence from the prosecutor. Lord Hope of Craighead explained: “The situation will vary from case to case. In cases such as the present, where a person sustains injury at work, the facts will speak for themselves. Prima facie, his employer, or the person by whose undertaking he was liable to be affected, has failed to ensure his health and safety. Otherwise there would have been no accident.

“But a case where the alleged risk has not had this result cannot be dealt with so easily. It will be necessary to identify and prove the respects in which there was a breach of duty. This is likely to require more by way of evidence than simply an assertion that that state of affairs existed.”

On the issue of s37 and liability of individuals, Lord Hope again confirmed that the circumstances will vary from case to case, saying that “no fixed rule can be laid down as to what the prosecution must identify and prove in order to establish that the officer’s state of mind was such as to amount to consent, connivance, or neglect”.

He endorsed the view that the question will always be “whether the officer in question should have been put on inquiry so as to have taken steps to determine whether or not the appropriate safety procedures were in place”.

He added that the Health and Safety (Offences) Act, which comes into force in January and increases the potential penalties for such an offence, “does not require any alteration in this test”.

Commenting on the judgement, Sarah Murray, senior associate at Stevens & Bolton LLP, said: “The burden of proof falls on any business to show that it complied with its statutory duties. With actions judged with the benefit of hindsight, the odds are therefore stacked against the business. This makes it vitally important that businesses make sure that health and safety is treated as a top priority and complied with, no matter how onerous the burden appears to be.”

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