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January 22, 2008

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Cause or consequence?

In the aftermath of a workplace accident, one of the many problems is establishing criminal liability. David Branson examines how UK health and safety law is more driven by consequence than cause, and argues this may be the wrong approach.

When considering the nature of legal liability for accidents at work, the law is driven by two different and conflicting criteria. In seeking the first of these, the cause of the incident, we are looking to see if we can establish fault on the part of the defendant. This may involve intention in areas of criminal law, but in health and safety, we are usually concerned with establishing recklessness or carelessness on the part of the defendant. Both of these will result in civil liability being attached to the defendant, but only in the case of recklessness or gross carelessness will any criminal liability be incurred. Establishing the cause of the accident is essential in determining criminal liability, while it is less important in establishing civil liability.

On the other hand, we may focus on the consequences of the accident, i.e. its outcome. This is important as regards civil liability, because, without any resulting damage, there is no liability for common law negligence — the action pursued as a result of most accident cases. In the case of criminal liability, this can also be important. If the end result is the death of another person, liability may lie for manslaughter, while in other cases, the liability will usually fall within the scope of the Health and Safety at Work etc Act 1974 (HSWA).

Civil liability

Arguably the main purpose of civil liability is to remedy a dispute. In this case, where an accident has occurred, the purpose is to determine if the defendant is liable, and if so, to arrange for the payment of sufficient compensation to the claimant. To this extent, the consequences of the accident are crucial, as this will determine the level of compensation payable.

The determination of the cause of the accident is also of key importance, as this will establish liability in the first place. However, in the case of accidents at work, there is an increasing tendency for the courts to find an employed defendant liable, because ultimately the employer, or its insurance company, will nearly always ‘foot the bill’.

This willingness to impose civil liability for accidents at work can be seen in recent case law. For example, there has been a widening of the duty of care in negligence, to encompass mental injury, such as stress and post-traumatic stress disorder (Walker v Northumberland C.C.).1 It is clear that the courts are increasingly unwilling to allow the defence of volenti in accident cases, and will argue that the employer should have exercised adequate supervision.

Moreover, we have seen how the courts will deliberately manipulate the causation rules in cases, such as Fairchild v Glenhaven Funeral Services, to ensure that the claimants obtain remediation, while the readiness to extend the already wide scope of vicarious liability can be seen in recent cases, such as Lister v Hesley Hall.2, 3 All these developments attest to the fact that the courts increasingly seek to impose liability on the employer, in respect of accidents or injury caused at work.

To some extent, all of this is seen as acceptable, because the main aim of civil liability is to provide compensation for the injured party. The lack of a no-fault system of liability means that it is necessary to go through the motions of establishing civil liability on the employee, vicariously on their employer, and ultimately on the employer’s insurance company.

What this all amounts to is shifting the burden of loss — directly or indirectly — onto the broadest shoulders. As a result, ‘faultless’ employers sometimes end up arranging for their insurers to pay compensation for employees injured at work, since this appears to be the fairest way of ensuring that the employee is provided with remediation, as in the case of Stark v Post Office.4 As such, we can see that civil liability is, to a large extent, divorced from the concept of any morally-based fault.

Criminal liability

In the case of criminal liability, the position should be quite different. Here, we are concerned with establishing the fault of the individual or organisation, as the purpose of criminal law is to punish the transgressor, in order to deter others from repeating the same actions. In this respect, for an accident at work, we would expect the focus to be on the cause, and not the consequences, since the outcome of an accident may be completely fortuitous. In other words, a deliberate failure to ensure adequate health and safety may only result in a minor injury or no injury at all, while a minor slip may result in a fatality.

To some extent this is reflected in health and safety law. The HSWA imposes criminal liability in respect of the failure to ensure the health and safety at work of employees. In section 2(2) this is expressed as the failure to ensure safe plant and equipment, or a safe system of work. This failure to provide effective safety management is taken up in the subordinate regulations, such as the Management of Health and Safety at Work Regulations 1999, which outline the requirements for a safe system of work.

The focus here is on liability for management failure, rather than the consequences of such. It is clear then that criminal liability will arise from a failure to ensure an effective safety management system, regardless of whether any person is killed or injured.

Corporate manslaughter

This focus on management systems can also be seen in the Corporate Manslaughter and Corporate Homicide Bill 2007, which is due to come into force in April. Here, criminal liability will be imposed on an organisation where ‘…the way in which its activities are managed or organised’ causes the death of a person and ‘…amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased’.5

Moreover, in determining what is reasonably to be expected, the jury will be able to take into consideration attitudes, policies, systems, or accepted practices within the organisation, which were likely to have encouraged a failure to meet the required duty of care.

It could be argued that the ultimate focus of corporate manslaughter legislation is really on the consequences of the accident, not the cause. Liability only arises where the end result is a fatality, and there is no liability for an organisation if the end result is a serious injury — even if the failure of the safety management system is equally as grave. It is the consequences of the accident which ultimately drive the liability, although the cause is still important.

The problems of this consequence-driven approach have been highlighted by various health and safety legal experts. For example, David Bergman of the Centre for Corporate Accountability has queried why liability should not exist for serious injury outside of the remit of the HSWA, by making use of the Offences Against the Person Act 1861.6 His concern is that causing the serious injury of an employee may be no less culpable, and yet does not attract a criminal liability in any way equivalent in seriousness to manslaughter.

If we are to focus on the cause of accidents, the end result should be irrelevant. We do not need criminal liability driven by end results, whether in respect of a fatality, or serious injury. The problem is that most criminal law is usually based on the consequences of the crime rather than its cause, and as such is not really designed to deal with accidents at work, a point made by Celia Wells in her book Corporations and Criminal Responsibility, as well as by Slapper and Tombs in Corporate Crime.7, 8 This factor poses problems in respect of both individual liability and the liability of organisations.

Individual liability

The key problem with criminal law is that for most offences involving injury to the victim, the defendant is only liable if it can be shown that he intended to cause the injury, or was reckless to this fact. In the case of accidents at work, intention is rarely an issue, at least as far as causing the death or injury of a person is concerned, so instead we need to look at recklessness.

Recklessness is now assessed on a subjective basis for manslaughter, and arguably any form of injury, following R v Gemmill & Richardson.9 In other words, the defendant — given his state of mind and mental capacity — should have been aware that his actions could lead to the injury of the victim.

This can be a difficult hurdle to overcome in accident cases, if the defendant can argue that he did not appreciate the consequences of his actions. Moreover, this is particularly likely in the case of an accident at work where the line of causation may be rather complex, unlike a typical ‘criminal’ assault, where the defendant is usually well aware of what he is doing and the likely results of his actions. As a result, it is not very easy to prosecute an accident case under this legislation and instead recourse is always given to the HSWA, under sections 7, 36 or 37.

However, the situation is quite different if the victim dies, as there may be liability for manslaughter. Manslaughter is rather different from other types of criminal liability, possibly because it is partly derived from the civil liability in negligence. Here, there is liability not only for recklessness, but also for gross negligence, as can be seen in cases such as R v Adomako.10 As such, the offence is much more likely to be applicable in the case of accidents at work, as it may be possible to establish gross carelessness in such a situation. Moreover, in the case of manslaughter, the defendant is liable to suffer imprisonment as a possible penalty.

So the consequences of the offender’s action are now the key factor in determining the nature of the liability. If the victim does not die as a result of a reckless or negligent action by the defendant, then any criminal liability would have to be pursued under the HSWA, where the maximum penalty is a fine. As a result, there is a similar form of dual liability as exists for organisations, where the end result determines the nature of the criminal liability and, in this case, the penalty imposed.

However, arguably the key issue in allocating criminal liability for an accident should be related to why the accident happened. This means that we need to look at what the defendant did to cause the accident, rather than the end result.

The present situation tends to focus, to a large extent, on the consequences of the defendant’s actions and, as such, fails to really come to terms with the main reason for imposing criminal liability, which is related to deterrence. We can only base liability on deterrence if we penalise the offender for his actions, rather than the consequences of his actions, as the latter may be beyond his control. We should note that in the case of accidents at work, there is often little relationship between cause and effect. In other words, the offender does not normally seek to cause injury to the victim. In most criminal law offences, however, the offender will seek to do just that. In effect, it is the readiness to run risks which is the nature of the fault in health and safety crimes, and it is this which needs to be penalised. Given the above, it can be argued that we should avoid liability for manslaughter — or other result-based criminal law offences — and rely on prosecutions under the HSWA.

We might even question whether there should be any liability at all for purely negligent actions, as opposed to reckless actions. While it could be argued that we need to deter a person acting with some element of intent, or at least a willingness to take risks, it is less clear whether deterrence can work where a person acts carelessly. Indeed, it may look as if we are punishing a person for personal failings, over which they have no real control. Surely, such matters should be dealt with by that person’s employers, who may decide to demote or dismiss, rather than impose criminal liability.

In conclusion, it is arguable that liability for individuals should normally be limited to prosecution under the HSWA. In this case, the penalties should be related to the nature of the cause of the offence, rather than the consequences.

Only in those rare cases, where an employee deliberately takes a major and unacceptable risk, leading to an accident, should we consider liability under result-based, criminal law offences. In such situations, we should be prepared to prosecute not only for manslaughter but also for causing injury, under legislation such as the Offences Against the Person Act, with a possible penalty of imprisonment in both cases. The main reason for prosecuting under these types of legislation would be the deterrence value of being prosecuted for what would be seen as a more serious offence, along with the more severe penalties that these carry.

Liability for organisations

When we look at the situation regarding organisations, the position is also problematic for slightly different reasons. The nature of criminal liability is individualistic in approach, and seeks to pin liability on a particular person. In order to establish corporate criminal liability for manslaughter, for example, it is necessary to show that responsibility lies with a key individual in the company whose actions can be identified as those of the company, the so-called ‘identification principle’.

Yet in organisations of any size, the actions that lead — or may lead — to an accident, are usually the result of a complex series of decisions made by a number of key individuals. This means that it can be very difficult to prosecute successfully for manslaughter in the case of large companies, a problem identified by several academic writers.11 Indeed, it is easier to prosecute an organisation which is effectively controlled by one individual, as he or she can be fixed with sufficient individual culpability as in R v Kite & OLL;12 whereas this is very difficult in a large, complex organisation, where decisions are spread between various individuals (e.g. DPP v P&O Ferries).13

The way to deal with this problem is to base criminal liability on the failure of the safety management system as a whole, rather than trying to focus on individual liability. This is the basis of the HSWA, and also the new Corporate Manslaughter and Corporate Homicide Act 2007.

We also need to look at specific offences imposing corporate liability for causing injury, instead of leaving such matters to fall within the remit of the HSWA. This is because the public does not perceive offences under this legislation to be particularly serious — the very reason why the new legislation relating to corporate manslaughter was introduced in the first place. For organisations, this is of major concern, as if large organisations are seen as responsible for causing the death of employees, or members of the public, but are not charged with serious offences, then the public will perceive this to be unfair. Indeed, it could be argued that the corporate manslaughter legislation should have been widened to include an offence of causing injury to persons, instead of limited solely to causing the death of the victim. As with individuals, we might look to making the organisation liable for offences under other legislation.

The failure of the safety management system, rather than the results of this failure, should be the key reason for prosecuting organisations. This means that the courts could be empowered to order remedial measures to deal with such a failure, including the removal of key persons from positions of responsibility in that organisation. This should be a power available in all health and safety cases and not just in cases where a death results. Indeed, where there is a serious failure of management systems, but there i
no death or serious injury, it may be better to impose liability under a separate piece of legislation which reflects the perceived seriousness of the offence, rather than just imposing a heavier fine under the HSWA.

Conclusion

The focus on consequence or ‘result-based’ liability is not really helpful in the case of work-related accidents. Instead, the key issue we need to consider here is why an accident arose.

But the new framework of criminal liability creates an unbalanced system in respect of individuals and organisations, as there are separate and more serious offences of manslaughter or corporate manslaughter, which only arise where an individual is killed as a result of an accident, and not where serious injury arises, or could have occurred.

We need to consider whether organisations should be liable for other offences, such as those under the Offences Against the Person Act. If so, there is an argument that this would extend the mens rea for these offences to include ‘gross negligence’, as well as recklessness or intention. This would bring the law here into line with the mens rea for corporate manslaughter, which also incorporates gross negligence. This is of particular importance for an organisation, as the failure of a number of key individuals can be seen as effectively the failure of an entire safety management system. As such, liability could be based on the failure of such a system.

As regards individual liability, we might argue along rather different lines. Although a person should be liable for intentional and reckless acts, it is arguable whether he or she should be criminally liable for carelessness. Such failings may be subject to civil liability, given the right of the employer to dismiss them, and even to recoup payment made by their insurer, under the principle laid down in Lister v Romford Ice & Cold Storage.14

Nevertheless, it is unclear whether criminal liability is appropriate for acts of negligence, or even gross negligence. Often the individual does not have the necessary control over surrounding circumstances to be able to act effectively, as in DPP v P&O Ferries.

Criminal law is also based on the concept of deterrence, and this seems to be inappropriate where a person has little control over their actions. Only in the case of reckless actions might it be fair to prosecute the individual, either under the HSWA, or possibly under a form of result-based legislation in serious cases.

References

1 Walker v Northumberland CC (1995) 1 All ER 737

2 Fairchild v Glenhaven Funeral Services (2001) EWCA Civ 1881

3 Lister v Hesley Hall (2001) IRLR 472

4 Stark v Post Office (2000) ICR 1013 5

5 The Corporate Manslaughter and Corporate Homicide Act 2007, section 1

6 Bergman, D. (1999): ‘Boardroom GBH’, New Law Journal, November

7 Wells, C. (2001): ‘Corporations and Criminal Responsibility’, OUP, pp 64

8 Slapper, G, Tombs, S. (1999): ‘Corporate Crime’, Longlands Harlow, pp 95

9 R v Gemmill v Richardson (2003) 4 All ER 765

10 R v Adomako (1994) 3 All ER 79

11 Tombs, S., Whyte, D. (2003): ‘Two steps forward, one step back: towards accountability for workplace deaths?’, Policy and Practice in Health and Safety, vol. 1, no. 1, pp 9-30

12 R v Kite & Others (1994)

13 DPP v P&O European Ferries (Dover ) Ltd (1991) 93 Cr App R 72

14 Lister v Romford Ice & Cold Storage (1957) AC 535

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