For almost 40 years now, the Health and Safety at Work etc Act (HSWA) 1974 has been the bedrock of workplace health and safety law in the UK.
Penalties for contravening health and safety requirements dramatically increased under the Health and Safety (Offences) Act 2008. The maximum fine imposed in the magistrates’ courts for most health and safety offences was raised to £20,000 and imprisonment was made an option for more offences in both the Magistrates’ and Crown Courts. It is therefore even more important that employers understand the ‘general duties’ and the burden of proof under HSWA 1974.
Unfortunately, a number of health and safety cases over the past few years have made it difficult to clearly interpret long-established principles within HSWA 1974. However, in the recent case ofR v Tangerine Confectionery Ltd and Veolia ES (UK) Ltd , the Court of Appeal sought to address most of these issues and it is expected that this judgment will end some of the recent debate that has arisen concerning the seemingly straightforward sections of HSWA 1974.
TANGERINE AND VEOLIA
The Tangerine prosecution involved a fatality in a factory that produced sweets. A worker became trapped in a machine when attempting to remove trays from it in order to clear a regularly occurring blockage. The machine re-started while this activity was being carried out and the worker was trapped and asphyxiated. Tangerine was convicted of a breach of s2 and a regulatory offence and was fined £300,000.
The Veolia case involved the death of an agency worker and injury to a Veolia employee during a litter picking exercise on the A228. The agency worker was collecting litter on the grass verge and the Veolia employee followed in a truck. At an obstruction on the grass verge the truck partially pulled on to the road and was struck by a large lorry. The truck was consequently pushed into the agency worker, across a verge and down a bank. Veolia was convicted of breaching both ss2 and 3 and was fined £225,000.
It should be noted here that the Sentencing Guidelines Council said that fines for defendants found guilty of corporate manslaughter (in force since 6 April 2008) may be in the millions of pounds bracket and should seldom be below £500,000. For other health and safety offences that cause death, fines from £100,000 upwards should be imposed.
Within the Tangerine and Veolia judgment, the following questions, said to have been causing some of the recent difficulties, were addressed:
- What is the relationship between ‘safety’ (s2) and ‘risk’ (to safety) (s3)?
- Where there has been an injury, is the Crown required to prove that the offence caused it?
- What, if anything, is the relevance to these offences of foreseeability of injury or of an accident which has in fact happened?
- To what extent must the Crown prove that the risk ‘derives’ from the defendant’s activities?
We shall now consider these issues further in light of the Court of Appeal’s substantial judgment.
THE ‘GENERAL DUTIES’
Section 2 of HSWA 1974 provides that:
‘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 3 provides that:
‘It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health and safety.’
While a subtle difference between ss2 and 3 can be noted, in that s2 refers to ensuring safety and s3 refers to an absence of risk to safety, the Court of Appeal confirmed in Tangerine and Veoliathat the two basic concepts are the same, apart from where the allegation includes welfare of an employee. This makes perfect sense when considering the case of Veolia in that an employee was working alongside an agency worker, essentially undertaking the same job of litter picking. It could not have been the intention of HSWA 1974 for Veolia to owe a greater duty to one than the other.
Section 40 of HSWA 1974 stipulates that:
‘In any proceedings for an offence under any of the relevant statutory provisions consisting of a failure to comply with a duty or requirement to do something so far as is practicable or so far as is reasonably practicable, or to use the best practicable means to do something, it shall be for the accused to prove (as the case may be) 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.’
Therefore, once the prosecutor has proved that the accused exposed their employees, or those who may be affected by their undertaking, to risk, the burden shifts onto the accused. It is then for the accused to discharge the burden of proof, 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 to be used to satisfy the relevant duty.
In the House of Lords case of R v Chargot Ltd , concerning the death of a dumper truck driver, the judgment stated that:
‘What the prosecution must prove is that the result that those provisions (ss2 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 s40 provides.’
Lord Hope further said that:
‘In cases such as the present, 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.’
These comments have since been interpreted to mean that ‘once there has been an injury then ipso facto there was a relevant risk’. However, in qualifying ‘risk’, Lord Hope had approved the case of R v Porter , in which a school pupil jumped from a step and was fatally injured. It was held that there was no evidence that the child had been exposed to a real risk due to the conduct of the school and that the risk was one of everyday life, thereby not requiring reasonably practicable measures.
Tangerine and Veolia’s judgment stated that the context of Lord Hope’s speech made it clear that he was merely saying that the fact of the injury is evidence of the existence of the risk. The ‘risk’, however, must be material and this was taken from Chargot to mean ‘not trivial or fanciful’.
The Court of Appeal also confirmed that it is not necessary for the prosecution to establish that the defendant caused the injury for there to be an offence under either s2 or s3. LJ Hughes said that:
‘These offences are not primarily concerned with ascribing responsibility for the cause of injury. Indeed, they are primarily concerned with avoiding injury. The offences can just as well be committed when there has been no injury as when there has… Causation of the injury is not an ingredient of either offence.’
Causation is a matter for sentencing, to be considered by the judge not the jury. On this point, LJ Hughes referred to s143 of the Criminal Justice Act 2003 and the requirement for all sentencing courts to have regard to the harm done.
FORESEEABILITY OF RISK
Further to Chargot, a decision of the Supreme Court in Baker v Quantum Clothing , concerning a civil claim for personal injury compensation arising from alleged industrial deafness and s29(1) of the Factories Act 1961, raised further questions on the relevance of foreseeability, particularly when considering the criminal offences created by ss2 and 3 of HSWA 1974. In that case, the Supreme Court held that foreseeability was relevant in assessing risk or lack of safety.
In Tangerine and Veolia, it was argued that the risk established by the accident was the risk of an employee making an inexplicable decision not to follow instruction and isolate the machine before entering it. The risk that he was then exposed to was not therefore foreseeable by his employer who, it was suggested, could not have been expected to guard against it.
It was concluded in Tangerine and Veolia that Baker did apply to ss2 and 3. LJ Hughes stated that:
‘Foreseeability of risk (strictly foreseeability of danger) is indeed relevant to the question whether a risk to safety exists… 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. That would convert the sections into ones creating offences of failing to take reasonable care to avoid a specific incident.’
LJ Hughes further commented that:
‘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, in the risks to which they apply, to risks which are obvious. They impose, in effect, a duty on employers to think deliberately about things which are not obvious.’
It was held in Tangerine and Veolia that the risks towards which both ss2 and 3 are directed are those which are materially related to the activities of the defendant. Section 2 clearly relates only to those risks while the employee is at work while s3 is concerned with those risks which arise from the defendant’s conduct of their undertaking.
In the Veolia submission, the defence argued that the risk and the accident arose from the ordinary use of the road in that the risk derived from the negligent driving of a member of the public rather than from the defendant’s activities, not being something over which the company exercised any control. However, the Court of Appeal rejected this test, finding that the risk the employee and agency worker faced undoubtedly derived from the activities of the defendant. LJ Hughes commented that:
‘Whilst we agree that it will sometimes be necessary to address the source of a risk, we suggest that the introduction of a separate test of “derivation” is more likely to confuse than to illuminate.’
As the Court of Appeal rejected the appeals of Tangerine and Veolia it appears that ss2 and 3 remain, in most respects, as before. However, in technical terms, there may have been a slight shift in favour of the defence concerning the issue of foreseeability, having accepted Baker. In any event, the eagerly awaited judgment of Tangerine and Veolia has assisted in clarifying the law following recent cases that had led to much debate over fundamental health and safety principles.
The requirement to carry out and review risk assessments for all activities, factoring in the hazards of the workplace together with the possibility of injury resulting from them, remains as important as ever to assist employers in considering what measures need to be introduced to control those risks.
In many cases it may have been a matter of chance as to whether or not a risk resulted in serious personal injury or death. While the judge may warn the jury, as Hughes LJ commented, that in deciding whether there was exposure to risk to safety that could have been avoided by reasonably practicable precautions it should guard against being over-influenced by the fact of death it is perhaps understandable that the jury may nevertheless focus on the facts of the fatal accident itself.
Returning to sentencing and the higher health and safety penalties being imposed by the courts, in September 2011, Marks and Spencer plc was fined £1m and ordered to pay prosecution costs of £600,000 as a result of asbestos management failings related to refurbishment work. Marks and Spencer plc pleaded not guilty to breaching ss2 and 3 of HSWA 1974 in January 2010. Four contractors were also fined up to £100,000 as a result of breaches at the company’s Reading and Bournemouth stores. The breaches related to a failure to ensure, so far as reasonably practicable, the health and safety of the company’s staff, other workers and members of the public at its Reading store, between April 2006 to November 2006.
This case did not result in an immediate fatality, unlike Tangerine and Veolia, so the fine may appear surprisingly high. However, asbestos cases are clearly different from an industrial incident which may have very immediate tragic consequences. As the judge noted, asbestos exposure can have very serious, potentially fatal consequences in the long term. It should also be remembered that retail, hospitality and leisure premises have the potential to expose many persons to risk by virtue of high levels of customers and when the million-pound fine is contrasted with the company’s reported pre-tax profit of £500m, it may not be as severe as appears at first glance. Some might even consider the fine, in all the circumstances, to be quite lenient.