News
House of Lords Health and Safety Decision
10 December 2008
The House of Lords yesterday handed down its decision in R v Chargot and others.
The facts are not set out in the opinions in any detail, not surprisingly given the decision.
An employee (Mr Riley) of the first defendant was killed when a dumper truck, which he was driving, overturned. There were no witnesses to the accident, and the cause was not known.
Mr Riley was employed by Chargot Ltd. The second defendant, Ruttle Contracting Ltd, was the principal contractor. The third defendant, Mr Ruttle, was a director of Chargot and the Managing Director of Ruttle Contracting. Both companies were members of the same group.
Chargot was charged with a breach of section 2 of the health & Safety at Work Act - failing to ensure, so far as reasonably practicable, the health and safety of its employees; Ruttle Contracting was charged with a breach of section 3 of the Act - failing to conduct its undertaking in such a way as to ensure the health and safety of persons not in its employment; Mr Ruttle was charged with a breach of section 37 of the Act - that, through his connivance, consent or neglect he had caused Ruttle Contracting to commit a breach of section 3 in failing to ensure, so far as reasonably practicable, that persons not in its employment were not exposed to risks to their health and safety.
Each of the defendants had been found guilty, even though no-one knew what had caused the accident. Chargot had been fined £75,00 with £37,500 costs; Ruttle Contracting had been fined £100,000 with £75,000 costs, and Mr Ruttle had been fined £75,000 and ordered to pay £103,500 in costs.
The House of Lords held that sections 2 and 3 describe a result which an employer must achieve - to ensure the health and safety of employees and that those not in its employment are not exposed to risks to their health & safety from the employer's operations. The sections do not specify the means of achieving that result. The Judges rejected the defence submissions that the prosecution has to identify and prove the acts and omissions by which it is alleged that the breach of duty was committed. All the prosecution has to prove is that the result described by sections 2 & 3 was not achieved or prevented. The Judges held that where there is an accident at work the facts will speak for themselves, and that there will be a prima facie breach of section 2 (the employer's duty to its employees). However, they held that where there is no accident, then the prosecution will have to identify and prove the respects in which there was a breach of duty, and that this was likely to involve more evidence than simply an assertion that a state of affairs existed.
In other words, where there is an accident at work, all the prosecution has to do is assert the breach of duty, as evidenced by the accident. The prosecution will not have to prove the acts which it says caused the accident. The burden is then on the defence to prove that it took all reasonably practicable steps to avoid the risk. Where there has been an accident, this will be very difficult.
Turning to the position of Mr Ruttle, once it was proved that Ruttle Contracting had committed an offence, he would be guilty if Ruttle Contracting committed the offence with his consent or connivance, or its commission was attributable to any neglect on his part. Therefore the prosecution had to prove these elements against him. However, the Judges state that where the officer of the company was in day to day contact with the site, very little evidence may be needed to prove the offence. Where the officer was remote from the site, and the work was not done under his immediate direction and control, more detailed evidence would be needed.
The Judges said: " Where it is shown that the body corporate failed to achieve or prevent the result that those sections (i.e. sections 2 & 3) contemplate, it will be a relatively short step for the inference to be drawn that there was connivance or neglect on his (i.e. the officer charged with the offence) part if the circumstances under which the risk arose were under the direction or control of the officer. The more remote his area of responsibility is from those circumstances, the harder it will be to draw that inference."
Mr Ruttle appears to have given a statement to the HSE during the investigation, but the details of this have not been considered for the purposes of this note.
With the advent of greater sanctions in the New Year, contractors and those on sites with responsibility for health & safety will be more exposed as a result of this decision. It will be easy for the prosecution to prove an offence has taken place - basically whenever there is an accident. The defence of having taken all reasonably practicable steps to avoid the risk is always going to be an uphill struggle when there has been an accident. The decision may well encourage the HSE to bring more charges against individuals.
For further information, please contact:
E: John Ward
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