UK: Muddle over foreseeability in prosecutions under the Health and Safety at Work Act

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The Court of Appeal has recently attempted to reconcile conflicting decisions of the Court of Appeal and the House of Lords as to whether it is a permissible defence to a charge under the Health and Safety at Work Act that the risk which is the subject of the prosecution could not reasonably have been foreseen.

Introduction

In a line of cases starting with R v HTM in 2006, the Court of Appeal and the House of Lords have issued conflicting decisions on the issue of whether, in order for an employer to be guilty of an offence under sections 2 or 3 of the Health and Safety at Work Act, the prosecution must prove that the risk which is the subject matter of the charge is one which would have been reasonably foreseeable to the employer.

In the case of R v Tangerine Confectionery, the Court of Appeal has attempted to clarify this and other issues relating to such prosecutions.

Background

Section 2(1) sets out an employer’s duties to its employees in the following terms:

“It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.”

Section 2(2) gives a non-exhaustive list of matters to which this duty applies. By way of example, s.2(2)(a) requires:

“The provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health;”

Section 3 sets out an employer’s duties to those who are not its employees in the following terms:

“It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.”

It has long been established that the words “so far as is reasonably practicable” are not in themselves a defence; instead they are part and parcel of the standard that the defendant must achieve: the duty is “to ensure … as far as is reasonably practicable…”. However, s.40 of the Act puts the onus of proving the limits of what was reasonably practicable on the employer, the effect of which is to make it a part of the defence case.

Read literally, therefore, both sections imply that the unavoidable and absolute duty of an employer is, in the case of employees, to ensure their safety and, in the case of non-employees, to ensure an absence of risk, in both cases subject only to the defence that in the particular circumstances of the case, it was not reasonably practicable to do so.

There are, however, two tensions inherent in such an interpretation. First, the interpretation is capable of establishing a prima facie case against an employer in circumstances where the risk could not have been foreseen. Secondly, it sits uneasily with the requirement in the Management of Health and Safety at Work Regulations that in order to fulfil its duties under the Act, an employer must carry out a risk assessment; yet a risk assessment implies not an absolute duty, but an acceptance of some degree of risk.

The line of cases

R v HTM (2006)

The employer was providing traffic management services (in the form of  contraflow arrangements lit by mobile towers) to contractors resurfacing a road. The maximum height of the towers was 9.1 metres. Overhead power cables, in places as low as 7.5 metres, crossed the workplace. The employees had been trained to move the towers only when retracted. There were notices on the towers to this effect. The contractor wished one of the towers to be moved. Two of HTM’s employees attempted to move it, but still fully extended; it made contact with the cables and both were fatally injured.

Part of the case which HTM wished to advance at trial was that it could not be foreseen that the employees would act in that way. This case was by way of preliminary ruling on whether they could do so.

The Court of Appeal commented that foreseeability was merely a tool with which to assess the likelihood of a risk eventuating. It held that a defendant to a charge under s.2 or s.3 of the Act, in asking the jury to consider whether it had established that it had done all that was reasonably practicable, could not be prevented from adducing evidence as to the likelihood of the incidence of the relevant risk eventuating in support of its case that it had taken all reasonable means to eliminate it.

R v Porter (2008)

The employer was the headmaster of a school. In the school, there were two playgrounds on different levels. Access from one to the other was by a set of brick steps. Each step had a width of 109 cm, a depth of 43 cm and a rising of 18.5 cm. A three year old child, descending the steps, reached the fourth from bottom step, jumped, lost his footing and landed face down on the bottom step. His injuries were not life-threatening, but he died later from a hospital acquired infection. The headmaster was convicted by a jury of an offence under s.3 and appealed.

The Court of Appeal commented that whilst the fact that an accident is unavoidable goes primarily to the reasonable practicability of the measures which an employer might take, rather than to the risk to

safety, that is not exclusively so. Where the risk can truly be said to be part of the incidence of everyday life, it is less likely that the injured person could be said to have been exposed to risk by the conduct of the operations in question.

The Court noted that no-one in the case had suggested that every playground up and down the country for every three-year old should have a flat surface and nothing from which an infant can choose to

Jump, or that in every school or public building to which young children have access, a child must be constantly supervised when the child chooses to go downstairs

The Court held that what is important is that the risk which the prosecution must prove should be real as opposed to fanciful or hypothetical. On the facts of this case, unless it could be said that this child was exposed to a real risk by the conduct of the school, there could be no question of jury being required to consider the reasonable practicability of measures designed to avoid that risk.

R v Chargot (2008)

The employer was a groundworks company working on a farm. An employee died when the dumper truck he was driving fell onto its side and buried him in a load of spoil that was being transported at the time. There were no witnesses to the accident. The HSE did not seek to call evidence as to how the accident happened or what faults with the employer’s health and safety system contributed to the accident.

The House of Lords held that what the prosecution must prove is that the result that the Act requires (ie ensuring the safety of employees) was not achieved. The failure to achieve the result is proved by the fact of injury: the fact of injury proves that a risk existed. Once that is done a prima facie case of breach is established. The onus then passes to the defendant to prove that it was not reasonably practicable to have prevented the risk.

Curiously, the House of Lords re-affirmed the decision in the case of Porter, despite the fact that if the prosecution in that case had been allowed to prove the risk simply by proving the fact of injury, Mr Porter’s appeal would have been unsuccessful. Lord Hope said:

The law does not aim to create an environment that is entirely risk free. It concerns itself with risks that are material. That, in effect, is what the work “risk” which the statute uses means. 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.”

R v EGS (2009)

The employer was a company which installed electronic components to enable the operation of security gates. It installed keypads for the operation of a gateway into a housing development. From the outside the gates were operated by key fobs or by an intercom system. From the inside they could be operated by an exit  button on the gate pillar. A child was able, from the outside, to slip its arm through a gap between the gate and the pillar and operate the exit button. In doing so he was crushed by the gate and died.

The Court of Appeal claimed that, in its decision, it was following Chargot. However, it commented that it could not understand why, in that case, Lord Hope had added after the words “where there is a material risk to health and safety” the words “which any reasonable person would appreciate and take steps to guard against”.  The Court decided that what he had meant was that in practice, any reasonable person would appreciate and take steps to guard against a risk which is more than trivial or fanciful.

This meant that it would be helpful to ask whether a reasonable person would appreciate and guard against the risk in deciding whether the risk is more than trivial or fanciful. However, it did not mean that the prosecution had to prove that the risk was one which any reasonable person would appreciate and take steps to guard against. All it meant was that the prosecution had to prove that the risk was not fanciful and was more than trivial.

Furthermore, the fact of death resulting from something that the victim was able to do as a result of the defendant’s actions proved a prima facie case:

“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.”

Baker v Quantum Group (2011)

This was a compensation case, the claim relating to noise induced hearing loss in the knitting industry from employment at a time when there were no noise regulations laying down legally binding noise levels.

One issue in the case was whether safety was an absolute and unchanging standard or a standard which varied according to the level of technical knowledge at the time. Could one look back at a time when the generally understood safe level was 90 dBa, but apply the subsequently understood safe level of 85 dBa as the standard of safety?

Not surprisingly, the Supreme Court decided that safety was not an absolute standard, but varied according to the standards and knowledge of the relevant time and concluded, perhaps inevitably, that if safety is a relative concept, then foreseeability must play a part in determining whether a workplace was safe. To hold otherwise would impose an obligation on employers to guard against dangers of which they could not reasonably be aware. Given that breach of that obligation would expose an employer to potential criminal liability, it would be an unreasonable interpretation.

Lord Dyson commented that it is only if a risk is reasonably foreseeable and if it was reasonably foreseeable that an injury would be caused that it would become necessary to consider whether it was reasonably practicable to avert the risk.

Clearly, this conclusion was at odds with the decision in EGS and more recently the Court of Appeal found itself having to reconcile the two.

R v Tangerine Confectionery (2011)

The facts of the case are immaterial, save that the employer’s defence was that the accident that happened was not reasonably foreseeable, but the prosecution’s case was that foreseeability, per EGS was irrelevant.

The Court of Appeal, in attempting to reconcile the cases of EGS and Bakerremarked that even in EGS the court had observed that it would be helpful to ask whether a reasonable person would appreciate and guard against a risk in order to decide whether the risk falls within the section or not. It did not, however, address the ruling  However, it did not go on to consider the observation in the same passage to the effect that this did not mean that the prosecution had to prove that the risk was one which any reasonable person would appreciate and take steps to guard against

Nevertheless, the Court of Appeal held that it preferred the decision in the case ofBaker to that in the case of EGS (in any event it was bound by the case of Baker as that was a decision of the Supreme Court), observing:

“Foreseeability of risk (strictly foreseeability of danger) is indeed relevant to the question whether a risk to safety exists.  That accords with the ordinary meaning of risk, as is demonstrated by the concept of a risk assessment, which is itself an exercise in foresight. … None of this, however, means that in a prosecution under either section it is incumbent on the Crown to prove that the accident which occurred was foreseeable. “

In the court’s view, the principal relevance of foreseeability in most cases would be to the defence of all reasonable practicable precautions having been taken rather than whether the risk was one which was material.

Conclusion

The Court of Appeal decision in Tangerine Confectionery has helped to illustrate that the reasoning in past cases has been affected by a confusion between hazard, risk and accident.

First, the court is entirely correct in saying that there is no need for the prosecution to prove that the accident (as opposed to the risk or the hazard) was foreseeable, since sections 2 and 3 are concerned with risk, not accident or injury.

Secondly, it is also entirely correct in observing that what matters is foreseeability of danger (for “danger” read “hazard”). If the swathes of past cases reviewed in these cases are correct, then it is clear that, contrary to the literal interpretation that I posed at the beginning of this article, sections 2 and 3 are concerned with material risk. A risk cannot be evaluated unless the underlying hazard can be foreseen.

Consequently, a prosecution case needs to demonstrate a foreseeable hazard giving rise to a material risk. That is no different from an exercise in day to day risk management. It is hoped, therefore, that jurisprudence has been harmonised with workplace practice.

The Court of Appeal in Tangerine Confectionery also took the opportunity to clear up some other misconceptions about prosecutions under sections 2 and 3.

First, it decided that the fact of injury does not, of itself, prove a prima facie offence. It clarified Lord Hope’s comments (i.e. that where a person is injured at work, the facts speak for themselves) to mean no more than that the fact of the injury is only evidence of the existence of the risk; depending on the circumstances, it may be strong evidence, inconclusive evidence or no evidence at all.

Secondly, it ruled that the question of whether a material risk exists or does not exist is a matter of fact to be decided by the jury; foreseeability (or lack of it) of some danger or injury is a part of the jury’s enquiry.  The situation in Porter, therefore, where the Court of Appeal ruled that the judge should have withdrawn the case from the jury, is unlikely to be repeated save in exceptional cases where there is no evidence that a material risk existed.

In passing, we observe that what underlies many defended health and safety cases is a desire by the employer not to have its decisions scrutinised by a jury (likely to be inexperienced in health and safety matters), something which will happen in all cases where the employer needs to rely upon the defence of taking all reasonably practical precautions. By contrast, an argument based upon lack of foreseeability of hazard can result in a case being stopped before it reaches the jury if the judge decides that there is insufficient evidence for a finding by the jury that the risk was material.

Finally, it specifically commented that the defence of taking all reasonably practicable precautions does not impose on an employer the duty to take every feasible precaution, or even every practicable one; it imposes a duty to take every reasonablypracticable one.   It remarked that that what is reasonably practicable will depend on all the circumstances of the case, including the degree of foreseeable risk of injury, the gravity of injury if it occurs, and the implications of suggested methods of avoiding it. Again, these are all factors which would be taken into account in any risk assessment.

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