Sweet tangerine

The Health and Safety Act 1974 has been the foundation of UK health and safety law in the workplace for nearly four decades, but a number of recent cases have highlighted the difficulties in interpreting some of the most frequently invoked sections of the Act '“ the 'general duties' in sections 2 and 3.

Section 2 demands that every employer shall ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees. Section 3 requires 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 are not thereby exposed to risks to their health or safety.

Section 40 of the Act stipulates that, in any proceedings for such an offence, it is for the accused to discharge the burden of proving, on the balance of probabilities, that it was not reasonably practicable to do more than was done or that there was no better practicable means than was in fact used to satisfy the duty.

Once the prosecution has proved that the defendant exposed employees, or those who may be affected by their undertaking, to risk, the burden shifts onto the defendant to make out the section 40 defence.

Over the past few years, this seemingly straightforward principle has been rigorously argued and produced a line of authorities trying to establish the proper interpretation of the Act. The Court of Appeal's latest decision last week on the issue, in the case of R v Tangerine Confectionery and Veolia [2011] EWCA Crim 2015, should hopefully settle most of these arguments, at least for some time to come.

Risk not fanciful or trivial

Since 2008, the leading case has been The House of Lords authority of R v Chargot [2008] UKLH 73. The case followed the death of a dumper truck driver. While a number of health and safety failings were identified by the prosecution, there were no witnesses to the accident and the mechanism of it remained unknown.

The judgment in Chargot set out that: 'What the prosecution must prove is that the result that those provisions (sections 2 and 3) describe was not achieved or prevented. Once that is done a prima facie case of breach is established. The onus then passes to the defendant to make good the defence which section 40 provides.'

Therefore, where there is an accident involving the persons described within the general duties, the prima facie case is made out and the burden shifts to the defendant. The presence of a real risk, rather than a hypothetical one, is established by the fact of the accident.

In qualifying the term risk, Lord Hope approved the case of Porter [2008] EWCA Crim 1271, in which a school pupil was fatally injured while jumping from a step. It was held that there was no evidence that the conduct of the school had exposed the child to a real risk; the risk was one of everyday life and therefore, in this case, no question of reasonably practicable measures to avoid that risk arose.

The first Court of Appeal case to follow and interpret Chargot was EGS Ltd [2009] EWCA Crim 1942. In this case, Dyson LJ made clear that it is not incumbent on the prosecution to prove that the relevant risk was one which any reasonable person would appreciate and take steps to guard against. The prosecution does not have to prove that the risk was foreseeable but only that it was not fanciful or trivial.

Reversed burden engaged

Tangerine and Veolia appealed against their convictions and the application of the law in the Crown Court and challenged the Court of Appeal's interpretation of Chargot in EGS.

Tangerine was prosecuted after one of its employees was killed when attempting to unblock a sweet-making machine at the company's factory in Poole. Tangerine was convicted of a breach of section 2 and also a regulatory offence and was fined £300,000.

Veolia, a national waste and recycling company, was prosecuted following a road accident in which an agency worker, who was collecting litter from the side of the road, was killed in a collision involving a vehicle being driven by a member of the public. Veolia was convicted of breaching sections 2 and 3 and fined £225,000.

Counsel for the defence submitted the following:

• The prosecution must establish that the risk being relied on in the case was one that arose as a result of the alleged breach of duty, and that it was this risk that gave rise to the incident in the case.
• In order for the burden of proof to shift under section 40, the prosecution cannot solely rely on the accident as evidence of risk but it must go further and prove that the risk derived from the defendant's undertaking.
• The existence of an accident or injury may not be sufficient to engage section 40 as the risk must be one which a 'reasonable person' would identify and one which must be material.
• Until the prosecution had established that the conduct of the duty holder had exposed the relevant persons to a real risk, the question of reasonable practicability would not arise and the foreseeability of that risk was a relevant consideration when making that judgment.

The argument followed therefore that, in Tangerine, the risk established by the accident was the risk of an employee making an inexplicable decision not to isolate the machine as instructed, before entering it, thereby exposing himself to a risk that tragically eventuated. This risk was not foreseeable by his employer, who could not, therefore, have been expected to guard against it. In Veolia, the risk derived from the negligent driving of a member of the public, not from the employer's undertaking, and not something over which the company exercised any control. Therefore, the accident alone was not sufficient to engage the reverse burden.

The prosecution accepted that to fulfil the burden under a section 3 offence it is necessary to establish a link between the defendant's undertaking and the risk in question. In section 2 cases, however, the prosecution remained firmly of the view that the presence of an accident involving an employee was sufficient to engage the reverse burden. The prosecution also asserted that, although foreseeability is relevant to the question of whether the defendant did everything 'reasonably practicable' as per section 40, it played no part in establishing whether the prosecution had made out its prima facie case.

Foreseeability of risk

In a substantial judgment, which rejected both appeals, the Court of Appeal has provided a comprehensive commentary on the majority of the issues which have occupied health and safety lawyers for some time.

With regard to the issue of foreseeability, the court accepted that the recent Supreme Court ruling in Baker v Quantum [2011] UKSC 17 was applicable to sections 2 and 3 and foreseeability of risk is indeed relevant to the question whether a risk exists. However, this should not be construed as a major sea change; it is only the risk that needs to be foreseeable, such as an employee being crushed in the arms of the sweet-making machine, and not the mechanics of the accident. As Hughes LJ stated: 'The sections do not command an enquiry into the likelihood (or foreseeability) of the events which have in fact occurred. They command an enquiry into the possibility of injury. They are not limited'¦ to risks which are obvious. They impose'¦ a duty on employers to think deliberately about things which are not obvious.'

These comments apart, the judgment remained clear that the principal relevance of foreseeability will still be to the defence of reasonable practicability. Nonetheless, it does represent a softening of the position in favour of defendants in technical terms; however, it is doubtful that the change will have any practical effect in the vast majority of cases. Other than this, the judgment is in most respects a restatement and clarification of the law as it was and it has effectively shut the door on some of the more sophisticated defence arguments which have previously been deployed.

The idea of a 'derivation of risk test' was dismissed as unhelpful and the court also made clear that arguments regarding causation or the mechanism of the accident itself should not confuse the issues which must be decided. Causation of the accident is not an element of the offence. The offence lies in the failure to ensure safety so far as reasonably practicable, not in the causing of actual injury. Causation is a matter for the judge to rule on at sentence, not a matter for the jury, who should concentrate simply on whether persons were exposed to risk and if so whether it was reasonably practicable to avoid it.

It is hoped that this judgment will enable employers, lawyers and regulators to understand the legal position, with greater confidence, at least until the next case reaches court.