Health & Safety Law: Recent Developments 9 December 2008

Patron Saint of Chief Fire Officers? Janus

Health and Safety at Work Act 1974 “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” S3(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 those not in his employment who may be affected … are not thereby exposed to risks to health and safety”

Edwards v The National Coal Board “Computation … in which the quantum of risk is placed on one side and the sacrifice involved in the measures necessary for averting the risk is placed on the other and if there is a gross disproportion – the risk being insignificant in relation to the sacrifice – the defendant’s discharge the onus on them”

S40 – puts onus of proving reasonable practicability on defendant Regulation 21 of Management of Heath & Safety at Work Regulation “Nothing in the relevant statutory provisions shall operate so as to afford an employer a defence in any criminal proceedings by reason of any act or default of an employee of his”

Recent groundbreaking cases Hampstead Heath Swimming Club v Corporation of London and HSE HSE v HTM Ltd R v Chargot Ltd (t/a Contract Services) and others R v Porter De Menzes case

Hampstead Heath Swimming Club v Corporation of London and HSE Risk generated by decision to swim not the undertaking Caution should be used when construing HSWA with reference to the civil law cases HSWA and decisions on breach must be looked at on case by case basis Voluntary risk must be taken into account as part of above equation Public Policy requires a balance between individual freedom of action and control measures

R v HTM Issue of forseeability is relevant to determining reasonable practicability Forseeability is a tool which can be used to assess the likelihood of a risk eventuating Forseeability is not a way to apportion blame to employees Reasonable practicability is not a defence, merely qualifies duty Will not necessarily be liable for acts of junior employees

R v Chargot Do not need to particularise factors of the breach It is enough to establish relevant risk existed Risk must be real not hypothetical Accident occurred is important May be different if no causal link Appealed to House of Lords - judgement due on 10 December

R v Porter Prosecution to prove real risk Distinction between a real risk and a hypothetical one is not prescribed Issue for Jury to determine Jury can take any factor into consideration (including good record or absence of accidents) If risk not real then conviction will be unsafe

De Menezes Application of CPS of section 3 of HSWA Much disquiet about application of legislation intended for industrial issues Strict liability offence Easier to prove than other common law criminal offences

Lessons learned Facts of case will dictate approach Voluntary risk taking and every day risks may not be within scope of undertaking Foreseeability tool for helping determine issue of reasonable practicability Only need to show possibility of danger not exact nature of breach Liability may not attach if failing of junior employee

Enforcement Consider Likelihood of risk occurring Record Near misses Previous incidents Systems as whole v local failing

Other developments Consultation on use of section 3 in emergency situations Health and Safety Offences Act 2008 Consultation on draft sentencing guidelines: The new regime – Sentencing Advisory Panel 2.5-10% of turnover for manslaughter 1-7.5% for health & safety

Hilary Ross Partner Direct: +44 (0)845 415 6037 Mobile: +44 (0)7968 427150 hilary.ross@bondpearce.com