Update: health and safety

The House of Lords' ruling in R v Chargot [2008] UKHL 73 has been followed in the courts but numerous prosecutions brought by the Health and Safety Executive have also used the case as a point of reference.

R v N Ltd and Another [2009] 1 Cr. App. R considered the reverse burden of proof test reviewed in Chargot. In R v N Ltd, an employee (E) of the defendant's died when cutting welds on a beam when dismantling a platform on the Hungerford Jubilee Bridge. The HSE brought a prosecution under section 3 of the Health and Safety at Work Act 1974 (HSWA) for a failure on the part of the defendant, N, to conduct work so as to ensure that so far as is reasonably practicable persons were not exposed to risks to their health or safety.

Unpredictable actions

In the original trial the judge had allowed a submission of no case to answer. The facts presented to him were that E had walked out from a safe area on wet beams over the river without wearing a harness to dismantle the cut welds. E's actions were in direct contravention of explicit instructions on how the job must be carried out. E was a well respected and very experienced welder and it was not predictable that he would have taken this course of action, or indeed clear why he had taken this course.

The judge at first instance directed that 'Not Guilty' verdicts be entered on the court file without any evidence having been adduced, and without admissions or agreed facts on the basis that that no jury properly directed could convict of any of the counts on the indictment.

The case was appealed and the Court of Appeal held that the trial judge would ordinarily have the power to review the evidence at the conclusion of the Crown case and to rule as a matter of law that no jury properly directed could convict on the evidence. However, it was not open to a judge to entertain a submission of no case to answer, or to direct verdicts of 'Not Guilty', before the close of the Crown case, as in the case of R v N Ltd. It was therefore appropriate on the facts that a fresh trial should take place before a different judge. The COA directed that a retrial should not take place until after the decision in Chargot had been returned.

The judge at the retrial allowed a submission of no case to answer after hearing all the prosecution evidence. The defence, during the course of proceedings, likened E's action of un-tacking the welds other than instructed analogous to going up a tree with a chainsaw and cutting off the branches on which he was sitting. The judge confirmed that E 'went on a frolic of his own' and that his actions were such that they could not be foreseen. The reverse burden under section 40 of the HSWA as considered in Chargot which stipulates that where a defendant has failed to comply with a duty to do something, so far as is (reasonably) practicable, it shall be for the defendant to prove that it was not reasonably practicable to do more than was in fact done. The reverse burden test did not apply because the prosecution had failed to demonstrate that the defendants had exposed E to a material risk.

R v N Ltd demonstrates that the reverse burden test can be based solely on the evidence put forward by the prosecution. The HSE was strongly criticised for failing to analyse the case properly and for bringing a prosecution in this matter. Additionally, the case is a clear indication of how the courts are keen to establish that where an employee goes on a 'frolic of his own' and where a company has done all that is 'reasonably practicable' in relation to foreseeable risks, the company may have a defence. It appears that, thanks to R v N Ltd and Chargot, there will be more emphasis on the use of reasonable foreseeability in the future.

Employee duty

R v N Ltd highlights the growing trend for an expectation on employees to act in a reasonable manner and have regard for their own health, safety and welfare. Recent case law has compounded the duty placed on employees under section 3 of the Health and Safety at Work Act 1974 that every employee, while at work, is under a duty to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions. This trend is clear to see in the case of HSE v Keltruck Ltd [2009] in which an accident occurred when a foreman, JH, accidentally injured his mechanic father, AH, when he was reversing a cab at one or two mph into a workshop to hook up to a trailer AH had repaired.

JH was given the 'thumbs up' that the trailer was ready to be towed away by another colleague, and neither JH nor his colleague noticed AH by the front of the trailer with his back to them. AH described hearing the 'bleeping' of a reversing cab but disregarded it as a sound which could be heard all day. He then recalls being crushed.

A generic risk assessment had been carried out by the defendants but the prosecution alleged that this was insufficient and a more specific risk assessment should be utilised.

A submission of no case to answer was advanced and the presiding judge directed that the case be withdrawn from the jury and verdicts of 'Not Guilty' be entered. The judge found that the risk assessment was suitable and it was sufficient since the company had brought the relevant risks to the attention of their employees. Once the risks had been identified, the employers were entitled to rely upon the 'reasonable common sense and experience of mature employees'. The judge cited Chargot at paragraph 27: 'The law does not aim to create an environment that is entirely risk free. It concerns itself with risks that are material... It is directed at situations where there is a material risk to health and safety, which any reasonable person would appreciate and take steps to guard against.'

Irresponsible attitude

Despite the expectation that employees should take reasonable steps in relation to their own safety, the courts are still keen to maintain that where an employer takes a 'cavalier and irresponsible attitude to the safety of his employees' the courts will ensure that sentences they impose reflect their intolerance. In HSE v Holtom (unreported) 21 July 2009 (Central Criminal Ct) A, a 15-year-old, was killed as a result of a wall collapsing on him. The accident was witnessed by A's brother. The defendant, H, was sub-contracted to carry out a large garden landscaping and refurbishment project. The project manager for the site was F, a disqualified company director.

A and his brother had been instructed to demolish an unstable brick wall by H but H had failed to provide instructions and training, safety equipment or undertake any form of risk assessment. A and his brother began demolition of the wall without supervision or training. The unstable wall started to move. A alerted H to the danger but he failed to look at the problem. The wall subsequently fell onto A who suffered a major head injury after becoming trapped against an adjacent garage.

H was sentenced to three years' imprisonment after pleading guilty to manslaughter by gross negligence. F was also sentenced to 12 months' imprisonment after admitting working while disqualified from being a company director for a second time. The investigating inspector from the HSE commented that 'it is the duty of the contactors and employers to ensure that basic health and safety requirements are followed'.

Another example of the courts' intolerance to obvious breaches of basic health and safety regulations can be evidenced by HSE v Wrigley Company Limited [2009] (Plymouth Crown Court, 29 May and 10 July 2009) where an employee, PP, was cleaning the bottom drum of a chewing gum sheeting machine. No specific instructions had been given to PP on how to clean the drum but instructions and training had been given to isolate the machine prior to cleaning. PP's arm became caught in the machine causing extensive injuries requiring reconstructive plastic surgery. However, despite the severity of PP's injury, return to work did appear possible in the future.

The HSE case was brought under section 2 HSWA that the company failed, so far as is reasonably practicable, to protect the health, safety and welfare at work of all employees; and also under regulation 11 of the Provision and Use of Work Equipment Regulations 1998 (PUWER), that they failed to ensure measures were taken to prevent access to any dangerous parts of machinery. A total fine of £150,000 was imposed which is comparable to the fines imposed in relation to fatal accident claims.

Knowledge of available information

It is therefore clear that the courts are also keen to demonstrate that where risks can be readily guarded against they should be. This is further emphasised by Baker v Quantum Clothing Group and Others [2009] EWCA Civ 499 (Solicitors Journal 153/21, 2 June 2009). This appeal arose out of a group of seven test claims selected out of 700 claims against different employers in the knitting industry. The claimants had been exposed to noise in excess of 80 db(A)lepd but less than 90 db(A)lepd. They sought damages for hearing loss suffered as a result to that exposure.

At first instance, all seven claims were dismissed. In six of the cases the presiding judge held that the claimants had failed on causation to prove suffering from noise-induced hearing loss. In the remaining case of Baker, he found that the claimant, B, who had been employed by the defendant from 1971 to 1991, had suffered noise-induced hearing loss but her employer had not been in breach of duty during the material time either in common law negligence or under section 29 of the Factories Act 1961.

The claimant appealed on the grounds that her employer had been under a duty to provide ear protection from about 1972, or alternatively some date later, but before 1989 when they had finally provided ear protection and she had worn it. Had her employer provided ear protection at an earlier date, her evidence was that she would have worn it.

The COA allowed B's appeal. The Court of Appeal differentiated between the common law duty of care and the employer's duty of care under section 29 of the Factories Act 1961, which provides that the employer's duty to ensure that a place of work was safe is absolute, subject to a defence of reasonable practicability.

The COA concluded that, objectively, noise levels above 85 db(A)lepd have always been unsafe. It is irrelevant as to whether the employer had actual knowledge of this fact or not. The employer's only defence was to show that it was not reasonably practicable to guard against the risk of harm from such noise levels. By late 1976/early 1977, the average sized employer in the knitting industry could and should have been able to make an informed assessment of the risk to employees arising from the noise below 90 db(A)lepd in its workplace. Once that was determined, it was reasonably practicable for an employer to have provided ear protectors within six to nine months. Failure to do so was a breach of section 29 Factories Act 1961.

Baker demonstrates that the courts will not only consider the law in force at that material time, but also the knowledge of information available to an employer and whether the employer was aware of the risk, or whether it ought to have foreseen a risk developing. If so, was it reasonably practicable for the employer to protect against that risk? Any failure to provide adequate protection to guard against such risk will result in liability attaching to that employer.

It should be noted that the strict interpretation of section 29 of the Factories Act 1961 together with the new date of knowledge at common law of January 1988 in relation to noise levels of 85-89 db(A)lepd is likely to result in a vastly increased number of deafness claims which until Baker would not have been brought for cases where exposure was less than 90 db(A)lepd.