Update: health and safety

Recent developments in health and safety case law indicate that the courts are continuing to ensure that there is a balanced and reasonable approach to the application of health and safety regulations.

Sentencing guidelines

There has also been a major move forward in relation to sentencing of corporations with The Sentencing Guidelines Council publication of guidelines for 'Corporate manslaughter and health and safety offences causing death' on 9 February 2010. The guidelines relate to the sentencing of organisations where the death of one or more people was caused. They apply to sentences passed after 15 February 2010.

Under the section 172 of the Criminal Justice Act 2003, every court must have regard to the guidelines when sentencing defendants under the Corporate Manslaughter and Homicide Act 2007 (CMHA), or when sentencing corporate defendants whose breach of the Health & Safety at Work Act 1974 (HSWA) was a significant cause of death.

It is not clear at this stage what is meant by 'significant'. The guidelines do not extend to the sentencing of individuals under HSWA 1974.

The guidelines continue to place strong emphasis on assessing aggravating and mitigating factors as introduced in R v F Howe & Son [1999] 2 All ER 249 when considering sentence.

They indicate that where an offence under HSWA results in death, the appropriate fine is unlikely to be less than £100,000 and may be much more. For convictions under CMHA, the fine is unlikely to be less than £500,000 and may be millions of pounds. The guidelines state that although there should be no direct correlation between profit and the level of fine, this should be considered when setting a fine. It remains to be seen whether this approach will increase sentencing inconsistency and whether it will have a greater financial impact on smaller organisations.

Monetary punishment is not the only remedy recommended; the use of publicity orders for deterrence and punishment can dictate where and what information should be published in relation to an offence.

Additionally, remedial orders are recommended for use where steps to be taken by the corporation are clearly identifiable.

In terms of application of the guidelines, the first trial under the new Corporate Manslaughter Act 2007, R v Peter Eaton and Cotswold Geotechnical Holdings Limited, was adjourned in February 2010 as a result of the defendant requiring medical treatment. A junior geologist, working for the defendants, was crushed to death when the sides of an excavated pit collapsed on him. The company was charged with offences under CMHA, and Mr Eaton, the sole director of the company, was charged under section 2 of HSWA and with gross negligence manslaughter. The case is likely to be heard later in the year. This dual approach to charging means that, unlike prior to the existence of CMHA 2007, in the event that the prosecution of Mr Eaton fails, the prosecution of the company may not fail as a consequence.

Guarding against risk

The case of Uren v Corporate Leisure Ltd & Ors [2010] EWHC 36 (QB) illustrates that claimants will find it difficult to succeed in bringing a claim where the cause of an accident is part of the inherent risk in the activity itself. The claimant was participating in a 'fun day' organised by the second defendant. The day involved a number of games in which the claimant participated voluntarily. A 'pool game' took place in an inflatable pool owned and managed by the first defendant.

The game involved a relay with team members taking turns in entering the pool, collecting an object and depositing it at the other side of the pool. The claimant had watched others enter the pool head first. When the claimant's turn came, he launched himself over the side of the pool head first and hit his head on the bottom of the pool, breaking his neck.

The claimant brought claims against the defendants for breach of their duty to take reasonable care for his safety. He alleged that they were both in breach of regulations 4(1), (2) and (3) of the Provision and Use of Work Equipment Regulations 1998 (PUWER) in failing to ensure that equipment was suitable for purpose, failing to have regard to the risks posed and for failing to use the equipment only for operations for which it was suitable. The claimant also alleged breaches of regulations 3 and 10 of the Management of Health and Safety at Work Regulations 1999, failure to carry out suitable risk assessments and failing to provide information in relation to risks to health and safety.

The judge considered the risk assessments prepared by the first and second defendants to be defective; they did not demonstrate that the assessor had in mind that participants might enter the pool head first. Despite this, the judge stated that the breaches in themselves were not determinative of the issue of liability.

The judge found that the risk of serious injury posed by the pool had been very small. The existence of such a small risk of serious injury did not mean that the defendants were in breach of their common law duty of care.

He found that competitive activities are a beneficial part of life and such activities are almost never risk free. A balance had to be struck between the level of risk and the benefits of an activity. Neither defendant was obliged to neuter the game of its enjoyable challenge by prohibiting head first entry. The issue was not whether adequate risk assessments had been undertaken, but whether the defendants had taken reasonable measures to ensure that the game was safe, which the judge found they had. It was held that any technical breach in respect of the risk assessments was not causative of injury. The case was dismissed.

Although the outcome of this case may appear surprising, in essence the court acknowledged the need to maintain a balance between managing risks and general public interest in allowing sport to be fun. Almost every sporting activity involves an element of risk, and it will generally be for a participant to manage the risk themselves. There is no duty to account for every risk. However, this does not mean that employers can relax their approach to risk assessment. Assessment must be made of the risk involved in undertaking any activity, taking into account the abilities of individuals, the net gain and the likelihood of serious injury.

Reasonable practicability and risk

In Mann v Northern Electric Distribution [2010] EWCA Civ 141, the Court of Appeal considered whether a defendant had done all that it could in preventing access to an electric substation. The claimant, a 15-year-old boy, appealed a decision of a recorder who dismissed his claim for serious injuries sustained when he was electrocuted while trespassing in an electricity substation. In order to gain access to the substation, the claimant found a unique way of using planks of wood as a makeshift ladder to access the roof.

The recorder found that the claimant's actions were not foreseeable even in the mind of the most determined trespasser. Accordingly, the recorder found that the defendant had done all that was reasonably practicable to prevent access.

The Court of Appeal agreed the recorder was entirely correct to investigate the particular actions of the claimant. The court reiterated Smith LJ's view in Baker v Quantum Clothing Group [2009] EWCA Civ 499 (due to be appealed in the Supreme Court shortly) that, in assessing what is reasonably practicable, the 'quantum of risk' must be balanced against the lengths that have been taken to implement preventative measures. The 'quantum of risk' was confirmed as being an assessment of the gravity of harm and likelihood of that harm occurring. The court found the method in which the claimant trespassed was not foreseeable; therefore it followed that no amount of security measures could have prevented his entry. The claimant's appeal was dismissed. This case demonstrates very clearly how health and safety cases will turn on their own facts.

The case of Abraham v Ireson & Son Ltd [2009] EWHC 1958 (QB) also revisited the case of Baker. During the course of his employment, the claimant was exposed on a light and intermit basis to asbestos. The overwhelming likelihood was that it had caused mesothelioma. However, it was held that the exposure was not negligent.

The employers had no special degree of knowledge. It was unlikely that the defendant on reading literature available at the time would have concluded that the claimant might be exposed to the risk of developing an asbestos-related injury. The Building (Health Safety & Welfare) Regulations 1948 and the Construction Provision Regulations 1961, which were in force during the period of exposure, implied a degree of forseeability in relation to risk by use of the wording 'likely to be injurious to health' as opposed to merely 'injurious'. The court reiterated the principle that knowledge of risk must be relevant to the issue of 'reasonable practicability'. In these circumstances, the defendant could not have been aware that the asbestos dust was likely to be injurious nor could they have reasonably have been expected to have knowledge of the risk of injury. Therefore, the defendant could not have reasonably taken any steps to protect the claimant.

Who is in control?

In Kmiecic v Isaacs [2010] EWHC 381 (QB), the claimant was carrying out work as a casual labourer for a building contractor at the defendant's home. The contractor was uninsured. The premises had a flat-roofed garage. The claimant wanted to access the roof through an upstairs window overlooking the roof. He was refused access by the defendant. The claimant used a ladder belonging to the defendant to access the roof. As he was doing so the ladder toppled and he fell, sustaining injury.

The claimant contended that the defendant had exercised control over his work, within the meaning of the Work at Height Regulations 2005 (WAHR), and the Construction (Health, Safety and Welfare) Regulations 1996 (C(HSW)R). The claimant argued that by refusing to allow or pay for the work to be conducted in a safer manner, the defendant had taken control over the work.

The court held that first WAHR only applied in the case of a non-employer to work by a person under his control; and second that the C(HSW)R only imposed a duty on a non-employer who controlled the way in which work is carried out by people at work insofar as they related to matters which were within his control. In this instance, the defendant did not assume control over the claimant.

The defendant was entitled to impose control over access to her property and in refusing entry she did so as an occupier and not as a person controlling the defendant's work. How work was to be done was dictated by his employer. This case affirms that health and safety remains the responsibility of both individuals and employers.

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