Health & Safety December 2008

Burden of Proof in HSE cases

The House of Lords gave an important judgment last week in the case of R v. Chargot, in defining what it is the Prosecution has to prove in proceedings brought under the Health and Safety at Work etc Act 1974 (HSWA).

The Appellant company, Chargot, had appealed a decision from the Court of Appeal, which rejected their assertion that the Prosecution was under a duty to identify and prove the particulars as to how the Defendant was alleged to have breached its statutory duty under sections 2 and 3 of HSWA. They essentially made the same arguments before the House of Lords who upheld the Court of Appeal decision and dismissed the Defendant's arguments.

The House of Lords stated that such particulars may be required for reasons of fairness, the overriding test being one of "fair notice", but that in general terms the Prosecution need only prove the existence of a state of affairs or "result", namely the exposure of employees or non-employees to a "risk". This will usually be evidenced by the fact of the accident itself and the prosecution was not obliged to prove specific breaches of duty. The burden then shifts to the defendant to prove that reasonable practicable measures were taken, as per s.40.

Section 3 may be treated slightly differently from s2 requiring the prosecution to prove the respects in which the injured person was liable to be affected by the way the Defendant conducted his undertaking.

On first blush, this may look like an important decision for the prosecuting authorities as it limits the burden on them to prove matters and the need to identify their basis for alleging a breach has occurred. However, in reality this was always likely to be the outcome of the case given the high burden that the HSWA is intended to place on employers.

However, one interesting point is that the House of Lords reinforced the decision in R. v. Porter – a case involving a headmaster who was prosecuted personally when a pupil fell down some stairs at his school - namely that the term "risk" when used in sections 2 and 3 of the HSWA 1974 is to be interpreted as reflecting only situations where there is a material risk to health and safety: "which any reasonable person would appreciate and take steps to guard against". In other words, it must be an "appreciable risk". This is relevant to what the Defence will have to prove to show that reasonably practicable steps have been taken in cases where the risk was very remote; namely where the actions of the person affected were themselves not foreseeable. The House of Lords decision seems to confirm that the concept of foreseeability is an essential part of the offence.

The significance of this principle has been illustrated in a case at Southwark Crown Court earlier this month. In that case, an NHS Trust, represented by Kennedys, was found not guilty by the unanimous verdict of the jury, after a two-week trial.

The Trust had been charged with breaching its duty to employees under s2 of HSWA. The allegation was that it had failed to protect all its employees in its hospital laundry, including a man who had died when he crawled on his back through a very small gap under a water press, passing through a door where a “cake” of laundry was discharged onto conveyors. The man was the Production Manager of the laundry and the most senior manager on site during his shift and had been working in the laundry for many years. Whilst under the press another worker had operated the press which came down crushing the deceased.

Despite the HSE giving evidence at the inquest that they had no idea why the man had done what he did, as there was no reason to crawl under the press, the HSE still proceeded to bring a criminal case alleging a breach. The allegation of failure of duty ran from 2001 when the Trust came into being up to December 2005 when the accident occurred. It was therefore an allegation of criminality running for some four years involving all employees in the laundry.

The Trust argued at the trial that (a) the man’s actions were not foreseeable, in other words, they were wholly inexplicable and that (b) the Trust could not have been expected to take measures to protect against that risk when it was not something identified as a risk. The evidence was that there were thousands of similar presses around the world and no accident had ever been recorded in relation to them and that the press had been supplied to the Trust by an internationally recognized supplier of laundry equipment with confirmation that it complied with European and British Standards.

The HSE called a number of witnesses from the Trust in support of its case, albeit in reality they were more supportive of the Trust and in cross-examination all of them stated that they had no idea what the deceased was doing under the press, that it was "utter madness" to go under there, that they had never seen anyone do it, and that they were trained to clear all faults from the access doors on the other side of the press which isolated the press so that it could not move as soon as the doors were opened. None of them could think of any reason to go under the press.

The Trust called one expert who gave clear evidence of the deliberate actions that the deceased must have undertaken to position himself where he did including: putting the machine into manual mode to lift the discharge door, lifting it, putting the machine back in automatic, then crawling along a conveyor on his back under the 42 cm gap into a wet area (where there was no equipment that might need attention).

At the end of the trial the Jury unanimously found the Trust not guilty of breaching its duty and the Trial Judge ordered that the Trust’s costs should be awarded to it from the Court Central Funds.

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Burden of Proof in HSE cases

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