Update: health and safety

A milestone has been reach under the Corporate Manslaughter Act 2007. On 23 April 2009, Cotswold Geotechnical Holdings became the first company in the UK to be charged under the 2007 Act (see Solicitors Journal 153/16, 28 April 2009). The Act came into force on 6 April 2008.

Charges were brought against Cotswold Geotechnical Holdings for the death of their employee Alexander Wright. Mr Wright was killed in September 2008 after a pit collapsed while he was taking soil samples. The company director Peter Eaton has been charged alongside Cotswold Geotechnical Holdings with gross negligence manslaughter. The charge under the new legislation means that Mr Eaton can be jailed for life if convicted and the maximum sentence against the company is an unlimited fine.

This first charge under the 2007 Act sends out a clear message that a sea-change has taken place in relation to corporate accountability. Historically there has been an unwillingness to attribute personal liability and custodial sentences on employers for their failure to adhere to health and safety legislation. However, tragic events such as the sinking of the Herald of Free Enterprise and the Paddington/Ladbroke Grove rail disasters prompted a call for the creation of corporate manslaughter offences to ensure that corporations and large companies took responsibility for their actions and omissions.

The directing mind

The 2007 Act now allows the courts to more easily hold a company, as a whole, responsible for a death, as well as (where appropriate) an individual or individuals. Previously, for a company to be charged with manslaughter there was a need to overcome the difficulty raised by the common law of finding an individual within the company that could be identified as being the 'directing mind' of the company. In R v P&O European Ferries (Dover) Ltd (1991) 93 Cr App R. 729 (the Herald of Free Enterprise case) there was insufficient evidence to identify the individual whose 'acts' would be considered 'acts of the company'. This case was in contrast with R v Kite [1996] 2 Cr. App. R. (S.) 295, where the director and the company were convicted of manslaughter. In this instance it was a one-man company and the managing director was obviously the 'directing mind'. The difficulties often faced in finding the directing mind meant that in larger companies it was less likely that a company would be charged and convicted. This lead to public outcry at the great injustice faced by those seeking legal redress where clear failures by a company could be evidenced.

Under the 2007 Act there is no longer the great difficulty previously experienced in bringing a charge of corporate manslaughter. There is no longer the condition of identifying an individual 'mind' within a company and a company can be charged as a whole. However, this does not mean an individual can escape liability if they can be related to the cause of a death. The individual and the company can be charged side by side, as is the case with Mr Eaton and Cotswold Geotechnical Holdings.

Taking into account the above, in recent years there has been a significant shift towards responsibility for health and safety. Regulations such as The Construction (Design and Management) Regulations 2007 highlight this shift by placing responsibility on 'every person at work'¦to report'¦ any defect which he is aware may endanger the health and safety of himself or another person'. The courts have also been inclined to apportion responsibility more widely, however they are still are inclined to put a high duty on an employer to protect their employees from risk of injury.

Duty to warn against risks

In Ferdinand Ammah v Kuehne & Nagel Logistics Ltd [2009] EWCA Civ 11, the appellant (F) appealed against a decision dismissing his claim for damages for breach of his employer (K)'s duty of care to ensure a safe system of work. F worked in the despatch department, taking items from shelves. Most shelves were at the 'A' level, and could be reached without difficulty. The next level up was the 'B' level, which was just out of F's reach. At the time of the incident F was attempting to collect an item from a box on 'B' level. Rather than using a 'man-riser', portable steps or a forklift truck as instructed by K, F turned a tote box upside down and stood on it to access the shelf. As he was reaching for the item the tote moved and he fell, breaking his ankle. He claimed for negligence and breach of statutory duty, contending that K should have told him not to use boxes in that way and it was K's duty to warn employees against even an obvious risk.

The court held that an employer may need to explicitly warn their employees of even obvious risks. In Ferdinand it was found that a general instruction not to use equipment for anything other than its intended purpose was an insufficient warning. The judge acknowledged that some dangers were so obvious that no instruction was required; but that could not be said in relation to the risk in the instant case. A warning or instruction was required even though it was very rare, as opposed to common practice, for an employee to stand on a tote. The judge found that the general instruction not to use equipment for anything other than its intended use was 'clearly insufficient'. However, F accepted that he was told to use a man-riser if he could not reach a shelf. It was therefore found that the risk associated with standing on a tote had been identified and had been adequately guarded against by the instructions given by K and the provision of equipment. In standing on a tote, F took a risk for which only he, and not his employer, was to blame. F's appeal was dismissed.

Employing the s.40 defence

The above case is a good example of how an employer who guards against risk can employ the s.40 defence under the Heath & Safety at Work Act 1974. For an employer to succeed in employing the s.40 defence he needs to demonstrate that 'it was not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement, or that there was no better practicable means than was in fact used to satisfy the duty or requirement'.

The House of Lords' ruling in R v Chargot Ltd (t/a Contract Services) and others [2009] 1 W.L.R. 1 confirms that the onus remains on an employer to make good the s.40 defence under the 1974 Act. Despite the increasing responsibility being placed on employees, once an act or omission by a company has lead to injury or death, the onus is on the company to show it has done everything that was reasonably practicable to ensure the safety of employees and others.

Establishing a breach of duty

In Chargot the lords considered what the prosecution's burden was in establishing a breach of duty under HSWA 1974 s.2 and s.3; where s.2 places a 'duty on every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all its employees', and s.3 extends the duty to 'ensure that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety'.

The lords focused upon whether the prosecution merely had to show that there was a risk to health and safety from the state of affairs at work; or whether they had to go further and identify and detail the particular acts or omissions by the defendant which had allegedly given rise to the breach.

The first and second defendants (D1 and D2) were members of a group of companies, of which the third defendant (D3) was the managing director. D2 owned land where a car park was being constructed. D1 employed the workmen on the site. One of the workmen (V) was asked to drive a dumper truck loaded with spoil to a hole to be deposited. As V was driving down a ramp to the hole, the dumper truck fell on its side and V was buried under the spoil and died.

D1 was charged with contravening s.2(1) of the1974 Act, and D2 and D3 charged under s.3(1). The prosecution case against each of the three defendants was that D1, as the employer of the deceased, had failed to ensure his safety; that D2, as the company carrying on the undertaking, had failed to ensure that the project was carried on in such a way so as not to expose V and others to risk; and that D3, as a director of D1 and D2, had neglected to prevent the commission of the s.3 offence.

The defendants maintained their defence that pursuant to s.40, they had done everything that was reasonably practicable to ensure the safety of V and other workers on the site. They subsequently failed to establish their defence and were convicted. The defendants then appealed on the ground that the prosecution had failed to identify the scope of the duty that they had allegedly breached, by reference to the way in which the work had been undertaken.

Burden of proof

The House of Lords, in dismissing their appeals, held that s.2(1) and 3(1) of the 1974 Act described a result which the employer was required to achieve or prevent. It was for the prosecution to prove the result had not been achieved or prevented; however they did not have to go on to identify and prove the acts or omissions by the defendant once they had proved the result described in s.2 and 3 had not been achieved or prevented.

Once the prosecution established what the defendants were required to achieve or prevent, the burden of proof transferred to the defendants to prove that they had met the duties imposed under s.2 and 3 on a 'balance of probabilities' and it was not reasonably practicable for them to do more to achieve the objectives of the health and safety legislation to keep 'persons' safe. The lords found by reference to the 1974 Act that it was not a disproportionate legal burden of proof placed on the employer.

The above case by its very nature will impact on the future practice of health and safety prosecutions. Essentially, the prosecution need not detail the events that lead to a result. It is for the employer to show they adhered to the legislation in order to succeed with a 'reasonably practicability' defence. Therefore careful notes of risk assessments and proper procedures become all the more important for an employer to protect his position.