West Law Report

Risks as part of everyday life

Posted in Times Law Report by mrkooenglish on July 21, 2008

From The TimesJuly 9, 2008

Risks as part of everyday life
Court of Appeal, Criminal Division
Published July 9, 2008
Regina v Porter
Before Lord Justice Moses, Mr Justice Openshaw and Sir Richard Curtis
Judgment May 19, 2008

The fact that a particular risk was a part of everyday life would go the issue whether a member of the public had been exposed to the risk in the conduct of an undertaking.

The Court of Appeal, Criminal Division, so held when allowing an appeal by James Godfrey Joseph Porter against his conviction on July 31, 2007 at Mold Crown Court (Judge John Rogers and a jury) of failing to ensure the health and safety of persons not in his employment, contrary to section 3(1) of the Health and Safety at Work, etc Act 1974.

The appellant was headmaster of a private school for children aged 3 to 16. A child of 3¾ jumped down some steps in the playground. He fell and suffered a head injury. He was taken to hospital and subsequently died after contracting MRSA.

Mr Patrick Harrington, QC and Mr Gerard Forlin for the appellant; Mr Tim Horlock, QC and Mr Nicholas David Jones for the prosecution.

LORD JUSTICE MOSES, giving the judgment of the court, said that the prosecution had to establish that the appellant had failed to ensure that the child had not been exposed to risk by the conduct of the undertaking.

The risk which the prosecution had to prove was a real risk as opposed to a fanciful or hypothetical risk. The fact that risk was a part of everyday life went to the issue whether the injured person was exposed to that risk by the conduct of the operation in question.

There were many considerations demonstrated by the evidence which suggested that there was no real risk of the kind statutorily contemplated. Unless it could be said that the child was exposed to a real risk by the conduct of the school, no question as to the reasonably practicable measures taken to meet risk arose.

Solicitors: DWF Solicitors, Manchester; Solicitor, Health and Safety Executive.

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