West Law Report

Burden of proof when an employee is killed

Posted in House of Lords (case), Times Law Report by mrkooenglish on December 20, 2008

From The TimesDecember 16, 2008

Burden of proof when an employee is killed
House of Lords
Published December 16, 2008
Regina v Chargot and Others
Before Lord Hoffman, Lord Hope of Craighead, Lord Scott of Foscote, Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury
Speeches December 10, 2008

In criminal proceedings against an employer after an accident ot work, it was sufficient for the prosecution to prove merely a risk of injury arising from a state of affairs at work, without identifying and proving specific breaches of duty by the employer. Once that was done, a prima facie case of breach was established. The onus then passed to the employer to make good the defence of reasonable practicability.

The House of Lords so held, dismissing an appeal by the defendants, Chargot Ltd (trading as Contract Services), Ruttle Contracting Ltd and George Henry Ruttle, from the dismissal by the Court of Appeal, Criminal Division (Lord Justice Latham, Mr Justice Gibbs and Mr Justice Lloyd Jones) ([2008[ ICR 517) of their appeals against conviction on November 19, 2006, in Preston Crown Court (Judge Russell, QC and a jury) of contravening the Health and Safety at Work, etc Act 1974.

The first defendant was fined £75,000 and ordered to pay £37,500 costs; the second was fined £100,000 with £75,000 costs; the third was fined £75,000 with £103,000 costs.

Section 2 of the 1974 Act provides: “(1) 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: “(1) It shall be the duty of 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 thereby are not thereby exposed to risks to their health and safety.”

Mr Richard Lissack, QC, Mr Ben Compton, Miss Maya Lester and Miss Kate Edwards for the defendants; Mr Tim Horlock, QC, Mr Richard Matthews and Mr Jamas Hodivala for the prosecution.

LORD HOPE said that on January 10, 2003, Shaun Riley was working in the course of his employment with the first defendant at Heskin Hall Farm in Lancashire where extensive works were being carried out.

The second defendant, a member of the Ruttle group of companies which owned the farm, was the principal contractor. The third defendant was a director of the first defendant and managing director of the second defendant.

The works required the excavation of a quantity of top soil from the site. A dumper truck was then used to move the spoil over about 500 yards to a depression in the field, beside which a ramp had been created to give the dumper truck a means of access.

Mr Riley was asked by the foreman to take over the driving of the dumper truck. While he was making a trip that afternoon the truck tipped over on its side and he was buried by the load of spoil that he was transporting. It was sometime before he could be pulled out, and attempts to revive him were unsuccessful. He died the following day in hospital.

The investigation which followed the accident revealed that there were various shortcomings in the heath and safety organisation at the farm. But there were no witnesses to the accident, and the precise cause of it was never established. The dumper truck itself had no defects and it was fitted with a seat belt which Mr Riley was not wearing at the time of his accident.

The principal issues in the appeal were directed to the way in which the case for the prosecution was presented to the jury. The prosecution based its case on the proposition that it was sufficient for it to identify and prove a risk of injury arising from a state of affairs at work.

His Lordship rejected the defendants’ primary submission that sections 2(1) and 3(1) required the prosecution to identify and prove the acts and omissions by which it was alleged that there was a breach of duty to achieve or prevent the result that they described.

What the prosecution had to prove was that the result that those provisions described was not achieved or prevented. Once that was done a prima facie case was established. The onus then passed to the defendant to make good the defence which section 40 provided on grounds of reasonable practicability.

In cases such as the present, where a person sustained injury at work, the facts would speak for themselves. Prima facie, his employer or the person by whose undertaking he was liable to be affected, had failed to ensure his health and safety. Otherwise there would have been no accident.

LORD BROWN said that in a case summary provided to the defendants before trial the prosecution had in fact outlined what they contended was a whole series of failures on the defendants’ part, such as failures: to train employees in the safe use of dumper trucks, to identify hazards in the use of such trucks, to plan safe routes, to instruct employees in the use of safety belts, and to carry out risk assessments.

It was argued for the defendants that some such allegations had to be specifically pleaded and proved and that the jury should have been directed that they could only convict if they were unanimous as to which, if any, of the various specific allegations were made out to the criminal standard of proof: see R v Brown ((1984) 79 Cr App R 115).

Sections 2 and 3 of the Act did not impose a duty merely to take reasonable care; rather they imposed a duty to ensure health and safety, leaving it to the employers to establish if they could, on the balance of probabilities, that it was not reasonable to expect them to do more than they did do to achieve the required objectives of health and safety.

It was not necessary for the prosecutor to identify, allege and prove specific failures on the employer’s part, as if those were necessary ingredients of the offence charged.

Lord Hoffmann and Lord Scott agreed with Lord Hope and Lord Neuberger agreed with Lord Hope and Lord Brown.

Solicitors: Keoghs LLP, Bolton; Holdens, Lancaster.

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